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Main Content

Tentative Rulings
Text-to-Speech

DEPARTMENT 82 LAW AND MOTION RULINGS

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.





Case Number: 20STCP03035    Hearing Date: January 30, 2024    Dept: 82

 

BALLONA WETLANDS LAND TRUST,

 

 

 

 

Petitioner,

 

 

 

 

 

 

 

vs.

 

 

Case No. 20STCP03035

 

[TENTATIVE] RULING ON MOTION FOR AWARD OF ATTORNEY FEES

 

Dept. 82 (Hon. Curtis A. Kin)

 

CALIFORNIA FISH AND GAME COMMISSION,

 

 

 

 

 

 

 

Respondent.

 

 

 

 

 

 

 

 

 

Petitioner Ballona Wetlands Land Trust moves for an award of attorney fees in the amount of $344,160.25.

 

I.       Background

 

On October 13, 2022, petitioner Ballona Wetlands Land Trust filed the operative verified first amended verified petition for writ of mandate. On September 7, 2023, the hearing on the petition took place, after which the Court took the matter under submission. On September 8, 2023, the Court granted the petition.

 

On November 3, 2023, the Court entered judgment in favor of petitioner. On November 7, 2023, the Court issued a writ of mandate directing respondent California Fish and Game Commission (“Commission”) to make a compatibility determination pursuant to Section 630 of Title 14 of the Cal. Code of Regulations as to whether the parking lots in Area A and baseball fields in Area C of the Ballona Wetlands Ecological Reserve are compatible with the purpose of the Reserve. (See 14 C.C.R. § 630(a) [“Visitor uses are dependent upon the provisions of applicable laws and upon a determination by the commission that opening an area to such visitor use is compatible with the purposes of the property”].)

 

II.      Analysis

 

A.           Entitlement to Fees under Code of Civil Procedure § 1021.5

Petitioner seeks an award of attorney fees pursuant to Code of Civil Procedure § 1021.5. “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest….” (CCP § 1021.5.) “[E]ligibility for section 1021.5 attorney fees is established when ‘(1) plaintiffs’ action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons” and (3) “the necessity and financial burden of private enforcement are such as to make the award appropriate.”’” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)

 

1.            Successful Party

 

A party “may be considered successful if they succeed on any significant issue in the litigation that achieves some of the benefit they sought in bringing suit.” (Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2010) 187 Cal.App.4th 376, 382.) In determining whether the issue upon which a party prevailed is significant, “the court must critically analyze the surrounding circumstances of the litigation and pragmatically assess the gains achieved by the action.” (Ibid.)

 

Here, petitioner succeeded in obtaining a writ directing the Commission to make an express and affirmative determination regarding whether parking lots and a little league field located on the Ballona Wetlands Ecological Reserve is compatible with the purpose of the Reserve. (11/7/23 Writ of Mandate; compare FAP Prayer for Relief at (iii).) Because petitioner prevailed on a significant issue in the litigation, petitioner is the successful party under section 1021.5. The Commission does not argue otherwise.

 

2.            Enforcement of Important Right Affecting the Public Interest

 

“In assessing whether an action has enforced an important right, courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. As to the benefit, it may be conceptual or doctrinal and need not be actual and concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient ... [However,] [t]he benefit must inure primarily to the public. Thus, the statute directs the judiciary to exercise judgment in attempting to ascertain the ‘strength’ or ‘societal importance’ of the right involved.” (Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 829, quoting Choi v. Orange County Great Park Corp. (2009) 175 Cal.App.4th 524, 531, internal quotations and citations omitted.)

 

The subject of the instant proceeding, the Ballona Wetlands Ecological Reserve, is “land or land and water areas…that are to be preserved in a natural condition, or which are to be provided some level of protection as determined by the commission, for the benefit of the general public to observe native flora and fauna and for scientific study or research.” (Fish & G. Code § 1584; 14 C.C.R. § 630(b)(10) [Ballona Wetlands designated as ecological reserve by Commission].) Moreover, it is undisputed that the State of California purchased the Reserve with $139 million in public bond funds. (Lamb Decl. ¶ 5.) Requiring the Commission to make a compatibility determination concerning potentially incompatible uses in the Reserve, which could potentially result in restoration of the land, furthers the significant policy set forth in Fish and Game Code § 1584. (14 C.C.R. § 630(h)(3) [providing that Commission may allow recreation use unless it determines that restoration or other uses are more appropriate]; La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1158 [“Where, as here, the nonpecuniary benefit to the public is the proper enforcement of the law, the successful party must show that the law being enforced furthers a significant policy”].)

 

Citing Center for Biological Diversity v. California Fish & Game Com. (2011) 195 Cal.App.4th 128 and Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, respondent contends that the writ of mandate does not compel any finding that the parking lots and baseball field are incompatible with the Reserve. (Opp. at 9:16-10:12.) Both cases are distinguishable. The petitioners in those cases only received remands for new hearings, which was not the relief they sought.

 

In Center for Biological Diversity, all the petitioner obtained was a “limited ‘do-over’”: “The trial court did not decide that the Commission had actually used the wrong standard, only that there was an appreciable risk that it may have erroneously evaluated the petition…. [T]he court did not accede to the Center's prayer that its petition to the Commission deserved to prevail as a matter of law, i.e., by overturning the Commission's finding that the Center had not produced sufficient evidence. This was the Center's ‘strategic objective.’… [¶] When the Commission reviewed the petition for the second time, it reached the same conclusion as it had before.” (Center for Biological Diversity, 195 Cal.App.4th at 140-141.)

 

In Karuk, the trial court remanded a matter to the agency to provide an “augmented explanation” of its decision that a state law was preempted by federal law. (Karuk, 183 Cal.App.4th at 364, 369.) However, the plaintiffs did not seek such relief: “The only relief/achievement/success from this litigation was the remand to the Board. However…it certainly was not sought by plaintiffs, but was engineered by the trial court for its own reasons. Nowhere in plaintiffs’ petition is there a hint that they wanted a fuller explanation from the Board supporting its conclusion that it was powerless against the [Federal Power Act].” (Id. at 366.) “Providing that augmented explanation does not, as the trial court concluded, qualify as a ‘significant benefit’ worth $138,000 to the people of California.” (Id. at 369.)

 

Contrary to Center for Biological Diversity and Karuk, petitioner’s central contention in the operative First Amended Petition was that respondent had not complied with its regulatory obligation to make a compatibility determination. (FAP ¶¶ 1, 22, 30, 34, 35, 39, 46, 54, 55, 57.) Petitioner’s prayer for relief seeks such a determination. (FAP Prayer for Relief at (iii).) Accordingly, petitioner’s enforcement of 14 C.C.R. § 630(a) affects an important right, specifically the public’s right to have the Commission conduct itself in a manner that makes sure the biological resources in and around the publicly funded Reserve are protected..

 

3.            Significant Benefit Conferred on General Public or Large Class of Persons

 

“Whether a successful party’s lawsuit confers a ‘significant benefit’ on the general public or a large class of persons is a function of (1) ‘the significance of the benefit,’ and (2) ‘the size of the class receiving [the] benefit.’ [Citation.] In evaluating these factors, courts are to ‘realistic[ally] assess[ ]’ the lawsuit’s ‘gains’ ‘in light of all the pertinent circumstances.’ [Citation.]” (La Mirada, 22 Cal.App.5th at 1158.) “A benefit need not be monetary to be significant. (§ 1021.5 [defining “a significant benefit” as either “pecuniary or nonpecuinary”].) Where, as here, the nonpecuniary benefit to the public is the proper enforcement of the law, the successful party must show that the law being enforced furthers a significant policy. [Citation.]” (La Mirada, 22 Cal.App.5th at 1158.)

 

“[T]he significant benefit requirement of section 1021.5 requires more than a mere statutory violation.” (Burgess v. Coronado Unified School District (2020) 59 Cal.App.5th 1, 9.) However, a significant benefit can be found “simply from the effectuation of a fundamental constitutional or statutory policy” “from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-40.)

 

For the reasons stated above with respect to enforcement of an important right, petitioner demonstrates that a significant benefit was conferred on the general public. (La Mirada, 22 Cal.App.5th at 1158 [finding when proper enforcement of law is the public benefit, “the significant benefit and important right requirements of section 1021.5 to some extent dovetail”].) The policy of protecting the Reserve for the benefit of the general public is set forth in Fish and Game Code § 1584. By enforcing 14 C.C.R. § 630(a), petitioner effectuated regulatory policy by ensuring that the Reserve is being used for purposes that are compatible with the purpose of the Reserve. (See Health Net of California, Inc. v. Department of Health Services (2003) 113 Cal.App.4th 224, 235 [treating regulatory violation as violation of statute because “regulations, by definition, are rules, orders, and standards of general application that ‘implement, interpret, or make specific’ the statutory law”].)

 

4.            Necessity and Financial Burden of Private Enforcement

 

“[T]he necessity and financial burden requirement really examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.” (Whitley, 50 Cal.4th at 1214.)

 

Private enforcement was necessary in this case because the petitioner brought the action against the government agency responsible for making a compatibility determination regarding the parking lots and baseball field at the Reserve. (See Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 941 [“Inasmuch as the present action proceeded against the only governmental agencies that bear responsibility for the subdivision approval process, the necessity of private, as compared to public, enforcement becomes clear”].) Further, the financial burden of private enforcement warrants a fee award here, as petitioner did not obtain any financial relief from the judgment. (See Whitley, 50 Cal.4th at 1217 [“As a logical matter, a strong nonfinancial motivation does not change or alleviate the ‘financial burden’ that a litigant bears”].)

 

Respondents do not argue that private enforcement by petitioner was unnecessary or did not pose a financial burden. For the foregoing reasons, the Court finds that the necessity and financial burden of private enforcement by petitioner warrants a fee award under CCP § 1021.5.

 

B.           Reasonableness of Fees Requested

Petitioner seeks $344,160.25 in fees, based on the sum of the asserted lodestar of $193,293.50, application of a 1.5 multiplier resulting in $96,646.75, and $54,220.00 for preparation of the fee motion.

 

1.            The Lodestar Amount

 

With respect to the fees incurred in obtaining a favorable judgment, petitioner seeks a total of $193,293.50, calculated as follows:


 

ATTORNEY

HOURS

RATE

TOTAL

Venskus & Associates, A.P.C.

 

 

 

Sabrina Venskus

14.11

$1000/hour

$14,110.00

Jason Sanders

9.12

$850/hour

$7,752.00

Rachael Andrews

3.71

$650/hour

$2,411.50

Paralegal

0.7

$200/hour

$140.00

SUBTOTAL (Venskus):

$24,413.50

Mitchell M. Tsai Law Firm

 

 

 

Mitchell M. Tsai

43.9

$800/hour

$35,120.00

Naira Soghbatyan

113.8

$650/hour

$73,970.00

Jason Cohen

0.7

$550/hour

$385.00

Talia Nimmer

102.5

$450/hour

$46,125.00

Mary Linares

1.5

$400/hour

$600.00

Paralegal

63.4

$200/hour

$12,680.00

SUBTOTAL (Tsai):

$168,880.00

 

 

 

$193,293.50

 

The Court finds the asserted hourly rates are reasonable, and respondent does not contend otherwise.

 

The Court finds that the $24,413.50 in fees claimed by Venskus & Associates, A.P.C. are excessive. “Entitlement to fees under [section] 1021.5 is based on the impact of the case as a whole.” (Karuk, quoting Punsly v. Ho (2003) 105 Cal.App.4th 102, 114, cleaned up.) Considering that the bulk of the work was performed by the Mitchell M. Tsai Law Firm, the Venskus firm does not make a sufficient showing that their work was instrumental in obtaining the writ relief sought by petitioner. Attorney Venskus states in a conclusory manner that the Venskus firm “contributed to the successful outcome of the litigation by formulating legal strategies, drafting and serving the initial petition, conducting legal research, and appearing at hearings.” (Venskus Decl. ¶ 9.) Aside from drafting the initial writ petition, serving the petition, and providing notice to the Attorney General, the Venskus firm did not impact the case as a whole. The Court awards the Venskus firm fees for 6 hours for drafting the petition, 0.2 hours for serving the petition, and 0.2 hours for drafting notice to the Attorney General. Based on a blended rate of $675.00 per hour (($1000 Venskus + $850 Sanders + $650 Andrews + $200 paralegal) ÷ 4 = $675 per hour), the Venskus firm is awarded fees in the amount of $4,320.00 ($675 x 6.4 hours).

 

With respect to the fees claimed by attorneys from the Mitchell M. Tsai Law Firm, the Court finds that certain fees were excessive.  With counsel’s experience as reflected in the relatively high billing rates, counsel should have spent less time performing the tasks set forth in the time records.  Further, the reductions account for inefficiencies and waste resulting from two or more attorneys unnecessarily working on the same briefing and tasks.

 

The Court reduces the billing entries as reflected in the following table:

 

Date

Attorney/ Paralegal

Description

Hourly Rate

Claimed Hours

Reduced Fees

Difference

Court Awarded Fees

4/19/22

Mary Linares

Review Email from M. Tsai re. Petition for Writ of Mandate

$400

0.3

0.2

0.1

$80

4/19/22

Mitchell Tsai

Reviewing case deadlines. Assigning follow-up tasks to Associates Naira Soghbatyan,
Associate Mary Linare and support staff.

$800

0.4

0.3

0.1

$240

4/19/22

Mitchell Tsai

Reviewing pleadings in case to determine scope of record. Drafting e-mail to client, Associates Naira Soghbatyan and Mary Linares, and drafting e-mail to client.

$800

0.5

0.3

0.2

$240

4/19/22

Naira Soghbatyan

Call with Sabrina, Mitch, Mary and client.

$650

0.2

0.1

0.1

$65

4/22/22

Maria Sarmiento

Downloading files from Westlaw and renaming them for case set up.

$200

0.9

0.9

0.0

$180

4/22/22

Maria Sarmiento

Finishing downloading files from Westlaw, creating a list of files that I'm unable to
open for attorney Mitchell Tsai.

$200

0.7

0.7

0.0

$140

4/22/22

Maria Sarmiento

Calendaring deadlines based upon most recent minute order and stipulation.

$200

0.5

0.5

0.0

$100

4/22/22

Maria Sarmiento

Drafting notice of appearance, troubleshooting with format, will need to be revised.

$200

1.2

1.2

0.0

$240


 

4/22/22

Maria Sarmiento

Drafting email for attorneys Tsai, Linares and Soghyaban and staff, indicating issues with downloading files from Westlaw.

$200

0.2

0.2

0.0

$40

4/26/22

Mary Linares

Email W. Lamb re. Additional Files and Meeting Video

$400

0.1

0.1

0.0

$40

5/2/22

Mary Linares

Remote Meeting with Client, M. Tsai re. Grassroots Coalition; Administrative Record; Settlement; Questions of Law

$400

1

0.5

0.5

$200

5/2/22

Mitchell Tsai

Attending strategy meeting with client.

$800

1

0.5

0.5

$400

5/3/22

Maria Sarmiento

Downloading remainder of files into Westlaw folder.

$200

0.4

0.4

0.0

$80

5/6/22

Maria Sarmiento

Revising draft of Notice of Appearance for attorney Mitchell Tsai to review, sending copy of draft

$200

0.6

0.6

0.0

$120

5/12/22

Maria Sarmiento

Setting alert for Westlaw docket tracking.

$200

0.1

0.1

0.0

$20

5/12/22

Maria Sarmiento

Searching for service list, preparing and finalizing POS, finalizing notice of appearance, troubleshooting OneLegal, e-filing and e-serving notice of appearance.

$200

1.2

1.2

0.0

$240

5/16/22

Mitchell Tsai

Meeting with client regarding case strategy.

$800

0.2

0.1

0.1

$80

5/25/22

Mitchell Tsai

Preparing ex parte motion to continue trial. E-mail to Associate Naira Soghbatyan and support staff.

$800

0.3

0.3

0.0

$240

5/25/22

Naira Soghbatyan

Email to Mr. Tsai.

$650

0.3

0.2

0.1

$130

5/26/22

Maria Sarmiento

Reviewing emails, outgoing call to department 82 with inquiry regarding ex-parte motion availability.

$200

0.2

0.2

0.0

$40

5/26/22

Naira Soghbatyan

Prepared the Ex Parte Application and Stipulation and sent an email re same to Mr. Tsai and others.

$650

4

3

1.0

$1,950

5/27/22

Maria Sarmiento

Outgoing calls to clerk this morning regarding trial continuance.

$200

0.2

0.2

0.0

$40

5/27/22

Maria Sarmiento

Outgoing call to department 82 with inquiry, reviewing files containing formatting
issues.

$200

0.5

0.5

0.0

$100

5/27/22

Maria Sarmiento

Incoming call from attorney Naira S. to discuss details about case.

$200

0.1

0.1

0.0

$20

5/27/22

Maria Sarmiento

Revising copy of stipulation and order with correct formatting, sending copy to
attorneys Mitchell Tsai and Naira S.

$200

0.5

0.5

0.0

$100

5/27/22

Mitchell Tsai

Reviewing and editing draft stipulation. E-mail to opposing counsel.

$800

0.2

0.2

0.0

$160

5/27/22

Naira Soghbatyan

Revised the Stipulation based on communications with the City Clerk; emailed staff and Mr. Tsai about the stipulation.

$650

0.4

0.4

0.0

$260

5/31/22

Maria Sarmiento

Reviewing emails, preparing stipulation and order, troubleshooting Adobe Acrobat DC, sending finalized copy to attorneys Mitchell Tsai and Naira S. for review.

$200

0.9

0.9

0.0

$180

6/3/22

Maria Sarmiento

Finalizing stipulation and order for e-filing, e-filing and e-serving with OneLegal, emailing attorneys Mitchell Tsai and Naira S. with confirmation.

$200

0.5

0.5

0.0

$100

6/3/22

Maria Sarmiento

Updating case file information re e-filing via OneLegal.

$200

0.1

0.1

0.0

$20

6/6/22

Maria Sarmiento

Downloading filing approval documents from One Legal, saving copy into case file,
messaging attorney Mitchell Tsai with inquiry.

$200

0.1

0.1

0.0

$20

6/6/22

Maria Sarmiento

Emailing conformed copy of stip and order to attorney Sabrina V. and client.

$200

0.1

0.1

0.0

$20

6/7/22

Maria Sarmiento

Updating case file information, forwarding e-filing receipt email from One Legal to client and attorneys, replying to attorney Mitchell Tsai's email.

$200

0.1

0.1

0.0

$20

6/7/22

Maria Sarmiento

Compressing One Legal e-filling confirmation documents into Zip File for file sharing
with paralegal Julie Malone.

$200

0.1

0.1

0.0

$20

6/10/22

Maria Sarmiento

Saving minute order to case file and sending copy to attorneys Mitch and Tsai.

$200

0.1

0.1

0.0

$20

6/10/22

Mitchell Tsai

Reviewing and editing trial date continuance stipulation. E-mail to opposing
counsel. E-mail to client.

$800

0.2

0.1

0.1

$80

6/10/22

Naira Soghbatyan

Revised the stipulation, reviewed the Court's minute order, and sent the redraft to Mr. Tsai for review.

$650

2

0.5

1.5

$325

6/14/22

Mitchell Tsai

Drafting and editing Appellant's Opening Brief.

$800

2

1

1.0

$800

6/14/22

Mitchell Tsai

Phone call and follow-up e-mail with client regarding denial of stipulation.

$800

0.2

0.2

0.0

$160

6/15/22

Rebekah Youngblood

Process Superior Court of California Court Order.

$200

0.2

0.2

0.0

$40

6/21/22

Naira Soghbatyan

Called the Dep't 82 clerk re ex parte; communicated with Mr. Tsai re ex parte; emailed the client with an update.

$650

0.1

0.1

0.0

$65

6/24/22

Naira Soghbatyan

Worked on the ex parte motion, exhibits, and submitted those to Mr. Tsai for review.

$650

9

4.5

4.5

$2,925

6/27/22

Naira Soghbatyan

Worked on the ex parte application.

$650

4.3

0

4.3

$0

6/27/22

Naira Soghbatyan

Worked on the ex parte application.

$650

1.6

0

1.6

$0

6/28/22

Naira Soghbatyan

Cleaned up the ex parte and re-sent it to client and Mr. Tsai for review.

$650

0.2

0.2

0.0

$130

6/28/22

Naira Soghbatyan

Worked on and revised the Ex Parte motion and declarations, in light of Sabrina's email.

$650

2

0

2.0

$0

6/28/22

Naira Soghbatyan

Reviewed the Client's signed declaration; emailed the client thereafter; messaged Mr. Tsai about the future process of filing the ex parte.

$650

0.2

0.2

0.0

$130

6/29/22

Maria Sarmiento

Preparing Ex-Parte Application and sending a copy to attorneys Mitchell Tsai and Naira S. for review.

$200

1.4

1.4

0.0

$280

6/29/22

Maria Sarmiento

Revising Ex-Parte application, incoming call from attorney Naira S.

$200

0.4

0.4

0.0

$80

6/29/22

Maria Sarmiento

Revising Ex-Parte with correct exhibit markers and sending to attorney Mitchell Tsai for final approval.

$200

0.1

0

0.1

$0

6/29/22

Maria Sarmiento

Making more revisions to Ex-Parte per attorney Naira S.'s instructions, incoming call from attorney Naira. S.

$200

0.3

0

0.3

$0

6/29/22

Maria Sarmiento

E-filing, e-serving, and e-copying Ex-Parte Application.

$200

0.4

0.2

0.2

$40

6/29/22

Mitchell Tsai

Drafting and editing ex parte motion. E-mail to support staff requesting that it get filed.

$800

2

1

1.0

$800

6/29/22

Naira Soghbatyan

Staff communications re filing of documents; final review and corrections of documents to be filed and their format; email of filed documents to opposing
counsel.

$650

0.7

0.4

0.3

$260

6/30/22

Maria Sarmiento

Setting up appearances for the Ex-Parte via CourtConnect for the client and attorneys.

$200

0.5

0.5

0.0

$100

7/5/22

Maria Sarmiento

Creating calendar entry for ex-parte hearing with login details, messaging attorney Mitchell Tsai.

$200

0.3

0.3

0.0

$60

7/5/22

Maria Sarmiento

Calling the clerk with inquiry, messaging with attorneys Mitchell Tsai and Naira S., drafting reminder email to client.

$200

0.4

0.2

0.2

$40

7/5/22

Maria Sarmiento

Incoming call from Walter Lamb, messaging with attorney Mitchell Tsai re ex-parte hearing, searching for tentative ruling online.

$200

0.2

0.2

0.0

$40


 

7/5/22

Mitchell Tsai

Preparing for ex parte hearing.

$800

0.7

0.5

0.2

$400

7/6/22

Maria Sarmiento

Reviewing case file folders, calendaring new entries related to the new trial date, messaging and emailing with attorney Mitchell Tsai, updating case file information with attorney notes, deleting prior calendar entries.

$200

0.6

0.4

0.2

$80

7/6/22

Maria Sarmiento

Preparing notice of trial continuance for e-filling and sending to attorney Naira S. for review.

$200

0.5

0.3

0.2

$60

7/6/22

Maria Sarmiento

E-filing, e-serving, e-copying notice of trial continuance, saving copies to case file.

$200

0.3

0.2

0.1

$40

7/6/22

Mitchell Tsai

Appearing for and arguing hearing on ex parte motion to continue trial.

$800

0.5

0.5

0.0

$400

7/6/22

Naira Soghbatyan

Appeared for ex parte application.

$650

0.2

0.1

0.1

$65

7/6/22

Naira Soghbatyan

Drafted and prepared a Notice of Continuance for filing.

$650

0.5

0.3

0.2

$195

8/31/22

Talia Nimmer

Reviewing case file and petitions

$450

1.2

1.2

0.0

$540

9/22/22

Mitchell Tsai

Meeting with Associate Talia Nimmer. Follow-up e-mail to client.

$800

0.3

0.3

0.0

$240

9/22/22

Talia Nimmer

Discussing amending the complaint and necessary records to do so with Mitch

$450

0.3

0.3

0.0

$135

9/22/22

Talia Nimmer

Drafting PRA request re Project funding documents and sending to Mitch for review

$450

0.8

0.7

0.1

$315

9/23/22

Talia Nimmer

Sending email to Walter re sending out new PRA request for grant documents

$450

0.2

0.2

0.0

$90

9/28/22

Mitchell Tsai

Conference call with client and Associate Talia Nimmer

$800

0.4

0.4

0.0

$320

10/7/22

Talia Nimmer

Starting reviewing, reformatting, and revising FAP

$450

0.7

0.7

0.0

$315

10/11/22

Talia Nimmer

Finished reviewing and revising First Amended Petition and sending to Mitch for review

$450

0.4

0.4

0.0

$180

10/12/22

Talia Nimmer

Finalizing First Amended Petition and sending to Maria for filing and serving

$450

0.2

0.2

0.0

$90

10/13/22

Maria Sarmiento

Incoming call from paralegal Steven Thong to discuss FAP filing.

$200

0.3

0.1

0.2

$20

10/13/22

Steven Thong

Phone call with Maria to discuss filing procedures

$200

0.2

0.1

0.1

$20

10/13/22

Steven Thong

Preparation of stamp through Stamp.com and envelope for USPS filing.

$200

0.6

0.3

0.3

$60

10/13/22

Steven Thong

Phone call with Talia regarding procedures for filing amended petition. Email out to client for approval of amended petition.

$200

0.5

0.3

0.2

$60

10/13/22

Steven Thong

E-file Amended Petition through one legal and mail out hard copies to Defendant

$200

0.4

0.3

0.1

$60

10/13/22

Talia Nimmer

Revising FAP and communicating with Steven re serving and filing

$450

0.3

0.3

0.0

$135

10/14/22

Steven Thong

Download conformed copies from One Legal and submit to client.

$200

0.2

0.2

0.0

$40

10/18/22

Mitchell Tsai

Meeting with client regarding case management and case strateyg.

$800

0.8

0.8

0.0

$640

10/18/22

Talia Nimmer

Phone call with Mitch, Mary, and Walter re next steps

$450

0.8

0.8

0.0

$360

10/18/22

Talia Nimmer

Sending emails to opposing and co counsel re next steps

$450

0.3

0.3

0.0

$135

10/19/22

Mary Linares

Review Email from T. Nimmer, [redacted]

$400

0.1

0.1

0.0

$40

10/19/22

Talia Nimmer

Determining [redacted] emailing Mary re document retrieval; emailing Walter re [redacted]

$450

0.8

0.8

0.0

$360

10/20/22

Talia Nimmer

Preparing draft stipulation re preparation of administrative record

$450

0.6

0.3

0.3

$135

11/4/22

Mitchell Tsai

Reviewing proposed draft stipulation. E-mail to Associate Talia Nimmer with proposed changes.

$800

0.2

0.1

0.1

$80

11/4/22

Mitchell Tsai

Phone call with Associate Talia NImmer discussing case management stipulation.

$800

0.2

0.2

0.0

$160

11/4/22

Talia Nimmer

Discussing AR stipulation with Mitch and revising to include briefing schedule

$450

0.6

0.4

0.2

$180

11/6/22

Mitchell Tsai

Reviewing and editing draft stipulation.

$800

0.2

0.2

0.0

$160

11/14/22

Talia Nimmer

Emailing Gary re setting up meeting to discuss AR

$450

0.2

0.2

0.0

$90

11/15/22

Talia Nimmer

Creating and circulating video conference link to Gary Tavetian and Mitch and sending client update email

$450

0.3

0.2

0.1

$90

11/21/22

Mitchell Tsai

Meeting with opposing counsel, Gary Tevetian, regarding case management.

$800

0.6

0.6

0.0

$480

11/22/22

Talia Nimmer

Meeting with Gary re AR stipulations and opening brief arguments and sending Mitch summarizing email

$450

0.7

0.7

0.0

$315

11/22/22

Talia Nimmer

Started drafting opening brief

$450

1.4

1.4

0.0

$630

11/23/22

Mitchell Tsai

Reviewing draft e-mail from Talia Nimmer to be sent to opposing counsel Gary Tevetian.

$800

0.1

0.1

0.0

$80

11/23/22

Talia Nimmer

Discussing email to Gary Tavetian with Mitch and emailing Gary re stipulating to authenticity of the EIRs and modified briefing schedule

$450

0.3

0.2

0.1

$90

11/30/22

Mitchell Tsai

Phone call with opposing counsel and Associate Talia Nimmer discussing case management.

$800

0.5

0.4

0.1

$320

12/6/22

Talia Nimmer

Emailing Walter re [redacted]

$450

0.6

0.6

0.0

$270

12/20/22

Mitchell Tsai

Reviewing e-mail from opposing counsel Gary Tevetian. E-mail to Associate Talia Nimmer discussing potential response.

$800

0.2

0.2

0.0

$160

1/3/23

Mitchell Tsai

Reviewing and editing draft stipulation. E-mail to Associate Talia Nimmer requesting revisions.

$800

0.3

0.3

0.0

$240

1/3/23

Talia Nimmer

Drafting stipulation to continue trial

$450

0.4

0.2

0.2

$90

1/3/23

Talia Nimmer

Revising stipulation to continue trial and sending to Gary Tavetian for review

$450

0.3

0.1

0.2

$45

1/5/23

Talia Nimmer

Revising and resending stipulation to continue trial and draft administrative record index in accordance with Gary Tavetian's requests and filing signed stipulation

$450

0.8

0.8

0.0

$360

1/9/23

Talia Nimmer

Downloading and saving Court's minute order, updating calendar dates, emailing Water and Gary re trial continuance, and responding to Walter email re uncertified transcripts

$450

0.6

0.6

0.0

$270

1/10/23

Hind Baki

Review and file emails about this case

$200

0.1

0.1

0.0

$20

1/17/23

Maria Sarmiento

Reviewing email from attorney, processing conformed documents from Court, reviewing case file, creating calendar entry for initial trial date.

$200

0.5

0.5

0.0

$100

1/17/23

Maria Sarmiento

Updating case file information with latest stipulation and order to continue trial filing action from 1/5/2023.

$200

0.1

0.1

0.0

$20

1/18/23

Talia Nimmer

Discussing transcript verification with Mitch and Gary Tavetian

$450

0.3

0.3

0.0

$135

1/24/23

Mitchell Tsai

Phone call with client regarding record certification. Follow-up e-mail to Associate Talia Nimmer regarding how to move forward on certified transcripts.

$800

0.2

0.2

0.0

$160

1/24/23

Talia Nimmer

Discussing how to proceed with Mitch re transcripts, calling Huntington court reporters for an updated quote, and emailing Walter latest status

$450

0.3

0.2

0.1

$90

2/7/23

Jason Cohen

Attention to case status and multiple correspondences with M. Tsai, T. Nimmer, and opposing counsel re: future actions for purpose of case monitoring and maintenance

$550

0.4

0.4

0.0

$220


 

2/7/23

Talia Nimmer

Reviewing case status and tasks in prep for 2/7 meeting with Mitch Tsai and Jason Cohen and discussing at meeting

$450

0.2

0.2

0.0

$90

2/8/23

Jason Cohen

Attention to case status update from opposing counsel

$550

0.1

0.1

0.0

$55

3/2/23

Jason Cohen

Attention to updates re: stipulation

$550

0.2

0.2

0.0

$110

3/9/23

Talia Nimmer

Discussing March 2 draft record email to Gary Tavetian w/Steven Thong

$450

0.2

0.2

0.0

$90

3/13/23

Talia Nimmer

Directing Drew Vandermale to make record link accessible to fish and game commission staff and confirming accessibility with Gary Tavetian

$450

0.2

0.2

0.0

$90

3/20/23

Hind Baki

Review and file emails about this case

$200

0.1

0.1

0.0

$20

3/27/23

Mitchell Tsai

Reviewing and editing substitution of attorney.

$800

0.1

0.1

0.0

$80

3/27/23

Talia Nimmer

Discussing Motion to Compel hearing with Mitch Tsai and emailing client status update

$450

0.3

0.1

0.2

$45

3/27/23

Talia Nimmer

Trying to change motion to compel certification reservation on court reservation system

$450

0.2

0.1

0.1

$45

3/28/23

Mitchell Tsai

Phone call with Associate Talia Nimmer discussing case strategy around Motion to Compel Certification of the Administrative Record.

$800

0.1

0.1

0.0

$80

3/28/23

Talia Nimmer

Calling Court clerk re motion to compel reservation date

$450

0.2

0.1

0.1

$45

3/29/23

Mitchell Tsai

Reviewing case strategy regarding administrative record certification issue. Drafting e-mail to client responding to question around Motion to Compel certification of the record.

$800

0.2

0.1

0.1

$80

3/29/23

Mitchell Tsai

Reviewing draft e-mail to opposing counsel drafted by Associate Talia Nimmer regarding motion to compel and administrative record certification deadline.

$800

0.1

0.1

0.0

$80

3/29/23

Steven Thong

Redo share drive and submit to Michael and Gary updated Administrative Records

$200

0.5

0.5

0.0

$100

3/29/23

Talia Nimmer

Discussing shareable administrative record link with Steven Thong and emailing Walter Lamb re Motion to Compel certification date and deadlines

$450

0.3

0.3

0.0

$135

3/29/23

Talia Nimmer

Discussing with Mitch Tsai and drafting/sending email to Gary Tavetian re stipulation to certify record or motion to compel certification

$450

0.4

0.3

0.1

$135

3/30/23

Mitchell Tsai

Drafting and editing stipulation.

$800

0.2

0.2

0.0

$160

3/30/23

Steven Thong

Following up with Gary and Michael for confirmation of received shared drive.

$200

0.1

0.1

0.0

$20

3/30/23

Talia Nimmer

Reviewing past emails, creating timeline of events, and drafting/sending stipulation re certification of administrative record to Gary Tavetian to sign

$450

0.8

0.6

0.2

$270

3/31/23

Mitchell Tsai

Drafting and editing stipulation regarding administrative record certification.

$800

0.2

0.2

0.0

$160

3/31/23

Talia Nimmer

Discussing Gary Tavetian's 3/30 email with Mitch Tsai and revising, resending, & filing stipulation re certification of administrative record

$450

0.6

0.4

0.2

$180

4/3/23

Talia Nimmer

canceling motion to compel certification of administrative record hearing and removing associated deadlines from firm calendar

$450

0.2

0.1

0.1

$45

4/4/23

Talia Nimmer

Sending client status update email re administrative record certification stipulation

$450

0.1

0.1

0.0

$45

4/7/23

Talia Nimmer

Downloading and saving signed stipulation/order re administrative record certification

$450

0.2

0.2

0.0

$90

4/11/23

Talia Nimmer

Discussing filing of administrative record with Mitch Tsai and emailing Gary Tavetian re filing record

$450

0.2

0.2

0.0

$90

4/14/23

Talia Nimmer

Started drafting opening brief outline

$450

1.2

1.2

0.0

$540

4/17/23

Talia Nimmer

Finished drafting Opening Brief Outline

$450

3.6

1

2.6

$450

4/18/23

Talia Nimmer

Sending Gary Tavetian follow up email re administrative record certification filing

$450

0.2

0.2

0.0

$90

4/20/23

Naira Soghbatyan

Reviewed Talia's outline, the petition, and did some research into the codes to supplement the outline.

$650

2.5

1.5

1.0

$975

4/20/23

Naira Soghbatyan

Reviewed the opening brief outline; supplemented it and sent back to the team.

$650

1

1

0.0

$650

4/20/23

Talia Nimmer

Discussing Opening Brief outline with Naira Soghbatyan and reviewing Naira's redlines

$450

0.6

0.4

0.2

$180

4/27/23

Steven Thong

Process Notice of Lodgment and Certification.

$200

0.1

0.1

0.0

$20

4/27/23

Talia Nimmer

Reviewing Notice of administrative record certification and notice of lodging record and directing Steven thong to save files to case folder

$450

0.3

0.3

0.0

$135

5/9/23

Talia Nimmer

Drafting Opening Brief

$450

3.4

2

1.4

$900

5/10/23

Talia Nimmer

Continued drafting opening brief

$450

1.6

1

0.6

$450

5/12/23

Talia Nimmer

Drafting opening brief

$450

2.4

1.7

0.7

$765

5/15/23

Drew VanderMale

Reviewing meeting videos to pinpoint the timeframe for relevant statements.

$200

1.3

1.3

0.0

$260

5/15/23

Talia Nimmer

Finished drafting opening brief and sending to Naira Soghbatyan for review

$450

2.3

1.8

0.5

$810

5/15/23

Talia Nimmer

Discussing video timeframe review with Drew Vandermale and inputting relevant timeframes into Opening Brief

$450

0.4

0.4

0.0

$180

5/16/23

Steven Thong

Review Case Reassignment, draft Notice of Case reassignment & Proof of Service for Attorney review.

$200

0.5

0.5

0.0

$100


 

5/17/23

Drew VanderMale

Print and mail Notice of Case Reassignment.

$200

0.1

0.1

0.0

$20

5/17/23

Mitchell Tsai

Phone call with client regarding case strategy and upcoming briefing deadlines.

$800

0.1

0.1

0.0

$80

5/17/23

Steven Thong

Extract and share Administrative Records to Walter.

$200

0.4

0.4

0.0

$80

5/17/23

Steven Thong

Finalize and efile Notice of Case Reassignment.

$200

0.3

0.2

0.1

$40

5/17/23

Talia Nimmer

Revising opening brief outline and sending to client for review

$450

0.4

0.4

0.0

$180

5/17/23

Talia Nimmer

Drafting declaration in support of opening brief

$450

0.8

0.8

0.0

$360

5/18/23

Naira Soghbatyan

Reviewed Talia's draft.

$650

1.2

0.7

0.5

$455

5/18/23

Naira Soghbatyan

Worked on the review of Talia's draft OB.

$650

2.8

2

0.8

$1,300

5/18/23

Naira Soghbatyan

Worked on the OB; emailed client.

$650

0.8

0.4

0.4

$260

5/18/23

Talia Nimmer

Discussing opening brief with Naira Soghbatyan

$450

0.3

0.3

0.0

$135

5/19/23

Naira Soghbatyan

Worked on Talia's opening brief draft; emailed Mitch and Talia a copy thereof.

$650

5.8

3

2.8

$1,950

5/22/23

Mitchell Tsai

Reviewing draft Opening Brief.

$800

0.8

0.8

0.0

$640

5/22/23

Naira Soghbatyan

Worked on the opening brief and incorporated new evidence from Walter's email re August 4, 2022; emailed same to Talia and Mitch.

$650

1

0.6

0.4

$390

5/22/23

Steven Thong

Review and discuss Bates Stamping for RJN Exhibit.

$200

0.2

0.2

0.0

$40

5/22/23

Steven Thong

Process conformed Notice of Case Reassignment.

$200

0.1

0.1

0.0

$20

5/22/23

Talia Nimmer

Reviewing Naira Soghbatyan's opening brief redlines, revising, and sending Mitch Tsai most recent draft for review

$450

1.7

1

0.7

$450

5/22/23

Talia Nimmer

Discussing bates stamping EIR with Naira Soghbatyan and Steven Thong

$450

0.2

0.2

0.0

$90

5/23/23

Talia Nimmer

Revising request for judicial notice in support of opening brief

$450

0.9

0.9

0.0

$405

5/24/23

Mitchell Tsai

Drafting and editing opening brief.

$800

2.3

1.5

0.8

$1,200

5/24/23

Talia Nimmer

Reviewing Mitch Tsai's redlines to opening brief, revising, amending request for judicial notice, and sending revised versions for review

$450

2.4

1.6

0.8

$720

5/25/23

Drew VanderMale

OCR opening brief PDF RJN Exh.2.

$200

0.1

0.1

0.0

$20

5/25/23

Mitchell Tsai

Drafting and editing opening brief.

$800

1.6

1

0.6

$800

5/25/23

Naira Soghbatyan

Reviewed the brief.

$650

1.6

1

0.6

$650

5/25/23

Talia Nimmer

Discussing request for judicial notice in support of opening brief with Naira
Soghbatyan

$450

0.2

0.2

0.0

$90

5/26/23

Naira Soghbatyan

Reviewed the RJN in support of the petition.

$650

1.1

0.5

0.6

$325

5/26/23

Steven Thong

Perform Bates Stamping on RJN Exhibit 1, 2, and 3 for Talia.

$200

0.3

0.3

0.0

$60

5/26/23

Talia Nimmer

Reviewing Mitch Tsai's redlines to opening brief, discussing bates stamping request for judicial notice exhibits with Steven Thong, revising/updating brief and request for judicial notice, and sending to client for review

$450

1.6

1

0.6

$450

5/30/23

Mitchell Tsai

Videoconference with client representative as well as Senior Associate Naira Soghbatyan and Associate Talia Nimmer discussing opening brief.

$800

0.9

0.9

0.0

$720

5/30/23

Naira Soghbatyan

Conference with the client, Mitch and Talia.

$650

0.7

0.7

0.0

$455

5/30/23

Naira Soghbatyan

Conference with Talia and Mitch re case and issues after the conference with the client.

$650

0.2

0.2

0.0

$130

5/30/23

Naira Soghbatyan

Review and compilation of various cases re promissory or equitable estoppel.

$650

1.3

1.3

0.0

$845

5/30/23

Talia Nimmer

Meeting with Brandon Young, Mitch Tsai, and Naira Soghbatyan re promissory estoppel research assignment

$450

0.3

0.3

0.0

$135

5/30/23

Talia Nimmer

Meeting with Walter Lamb, Mitch Tsai, and Naira Soghbatyan re opening brief revisions

$450

0.7

0.4

0.3

$180

5/30/23

Talia Nimmer

Reviewing client's revisions to opening brief, revising, and sending latest draft to
Mitch Tsai and Naira Soghbatyan for review

$450

2.9

1.9

1.0

$855

5/31/23

Brandon Young

Research cases re: estoppel against government agency.

$200

4

2

2.0

$400

5/31/23

Naira Soghbatyan

Reviewed and worked on the opening brief draft by Talia.

$650

5.1

3

2.1

$1,950

5/31/23

Talia Nimmer

Adding Naira Soghbatyan's suggested edits to opening brief

$450

0.3

0.3

0.0

$135

5/31/23

Talia Nimmer

Reviewing Naira Soghbatyan's redlines to opening brief and sending revised version to client for review

$450

0.6

0.6

0.0

$270

6/1/23

Brandon Young

Research cases re: [redacted]

$200

6

6

0.0

$1,200

6/1/23

Steven Thong

Review and draft Tables of Authority for Opening Brief.

$200

1.5

0.9

0.6

$180

6/1/23

Steven Thong

Review and discuss formatting of document and tables of authority.

$200

0.2

0.2

0.0

$40

6/1/23

Talia Nimmer

Discussing table of authorities with Steven Thong

$450

0.3

0.3

0.0

$135

6/2/23

Brandon Young

Citation for use of section 431.20.

$200

1

0.2

0.8

$40

6/2/23

Mitchell Tsai

Reviewing and editing draft Opening Brief.

$800

2.3

1.5

0.8

$1,200

6/2/23

Mitchell Tsai

Meeting with client and Associate Talia Nimmer regarding opening brief.

$800

0.5

0.5

0.0

$400

6/2/23

Naira Soghbatyan

Worked on the written submissions.

$650

4.4

1

3.4

$650

6/2/23

Steven Thong

Discuss opening brief Tables of Authority with Attorney Talia and add exhibit covers to exhibits.

$200

0.2

0.2

0.0

$40

6/2/23

Steven Thong

Finalize Declaration of Talia and Request for Judicial Notice for filing.

$200

0.4

0.4

0.0

$80

6/2/23

Steven Thong

Review Opening Brief and amend Tables of Authority.

$200

0.4

0.4

0.0

$80

6/2/23

Steven Thong

Discuss filing of Declarations, Request for Judicial Notice, and Opening Brief. Finalize Talia Nimmer's declaration.

$200

0.3

0.3

0.0

$60

6/2/23

Steven Thong

Perform final and last minute edits to Opening Brief, Request of Judicial Review, and Declaration. File and Eserve via One Legal.

$200

1.6

1

0.6

$200

6/2/23

Talia Nimmer

Meeting with Mitch Tsai and client re opening brief final edits

$450

0.5

0.5

0.0

$225

6/2/23

Talia Nimmer

Making final edits to opening brief, declaration, and request for judicial notice

$450

1.4

1

0.4

$450

6/2/23

Talia Nimmer

Discussing caselaw re [redacted] with Nara Soghbatyan, Mitch Tsai, and Brandon Young

$450

0.3

0.2

0.1

$90

6/2/23

Talia Nimmer

Discussing request for judicial notice v. motion to augment with Naira Soghbatyan
and Mitch Tsai

$450

0.5

0.3

0.2

$135

6/2/23

Talia Nimmer

Searching/reviewing administrative record for citations for opening brief

$450

0.4

0.4

0.0

$180

6/2/23

Talia Nimmer

Discussing verifying request for judicial notice documents with Mitch Tsai and Naira Soghbatyan, and revising declaration in support of opening brief

$450

0.4

0.4

0.0

$180

6/3/23

Talia Nimmer

Downloading and saving filed opening brief documents and sending to client for review

$450

0.3

0.2

0.1

$90

6/5/23

Steven Thong

Process conformed copies of accepted Opening Brief, Request for Judicial Notice, and Declaration of Talia.

$200

0.1

0.1

0.0

$20

7/3/23

Naira Soghbatyan

Reviewed and analyzed the Opposition brief by the Commission; reviewed and researched their cited case law [redacted]

$650

1.2

1.2

0.0

$780

7/3/23

Talia Nimmer

Reviewing Respondent's opening opposition brief and discussing counter arguments with associate Naira Soghbatyan

$450

1.1

1.1

0.0

$495

7/5/23

Talia Nimmer

Drafting reply brief outline and sending to Mitch Tsai and associate Naira Soghbatyan for review

$450

3.2

3.2

0.0

$1,440

7/5/23

Talia Nimmer

Reviewing and responding to client Walter Lamb's email re reply brief

$450

0.3

0.2

0.1

$90

7/7/23

Naira Soghbatyan

Reviewed the reply brief outline prepared by associate Talia Nimmer; conducted legal research and review of the record; supplemented the outline with record evidence and legal authority, to help with the drafting of the reply brief; emailed the revised/supplemented outline to Talia Nimmer and the team.

$650

6.4

4

2.4

$2,600

7/9/23

Talia Nimmer

Reviewing and revising associate Naira Soghbatyan's reply brief outline and sending to Mitch Tsai for review

$450

1.6

1.4

0.2

$630

7/10/23

Talia Nimmer

Drafting reply brief

$450

3.7

3.7

0.0

$1,665

7/11/23

Talia Nimmer

Researching caselaw re [redacted] and continued drafting reply brief

$450

3.7

2

1.7

$900

7/12/23

Naira Soghbatyan

Reviewed and edited the Reply Brief prepared by associate Talia Nimmer;
conducted required legal research.

$650

5

3

2.0

$1,950

7/12/23

Talia Nimmer

Reviewing and responding to client Walter Lamb's email re reply brief outline and reviewing, revising, and sending draft reply brief to associate Naira Soghbatyan and Mitch Tsai for review

$450

2.8

2

0.8

$900

7/13/23

Talia Nimmer

Discussing [redacted] for reply brief drafing with associate Naira Soghbatyan

$450

0.2

0.2

0.0

$90

7/13/23

Talia Nimmer

Researching caselaw re [redacted] and drafting request for judicial notice in support of reply brief

$450

1.1

1.1

0.0

$495

7/13/23

Talia Nimmer

Researching, downloading, reviewing, saving, and sending to associate Naira Soghbatyan [redacted]

$450

0.6

0.6

0.0

$270

7/14/23

Naira Soghbatyan

Reviewed and edited the Reply Brief prepared by Talia Nimmer.

$650

6.2

3

3.2

$1,950

7/14/23

Naira Soghbatyan

Reviewed and supplemented the reply brief prepared by associate Talia Nimmer; emailed the same to principal Mitch Tsai and associate Talia Nimmer, for further review.

$650

8.1

4

4.1

$2,600

7/16/23

Talia Nimmer

Reviewing associate Naira Soghbatyan's redlines to reply brief and emailing Naira and Mitch Tsai feedback

$450

1.2

0.8

0.4

$360

7/17/23

Naira Soghbatyan

Reviewed and edited the RJN prepared by associate Talia Nimmer.

$650

1.3

0.5

0.8

$325

7/17/23

Naira Soghbatyan

Edited and supplemented the draft Request for Judicial Notice, prepared by associate Talia Nimmer and emailed it to Talia with comments and
recommendations.

$650

1.8

1

0.8

$650

7/17/23

Talia Nimmer

Revising request for judicial notice in support of reply brief and sending to associate Naira Soghbatyan for review

$450

0.9

0.5

0.4

$225

7/17/23

Talia Nimmer

Revising reply brief and sending copy to client Walter Lamb for review

$450

0.8

0.5

0.3

$225

7/17/23

Talia Nimmer

Reviewing associate Naira Soghbatyan's redline to request for judicial notice and revising

$450

0.4

0.4

0.0

$180

7/18/23

Mitchell Tsai

Preparing reply brief. Reviewing opening and opposition brief.

$800

1

1

0.0

$800

7/18/23

Mitchell Tsai

Reviewing and editing reply brief.

$800

2

1.5

0.5

$1,200

7/18/23

Mitchell Tsai

Meeting with Senior Associate Naira Soghbatyan and Associate Talia Nimmer regarding reply brief.

$800

0.6

0.6

0.0

$480

7/18/23

Naira Soghbatyan

Conference call with Principal Mitch Tsai and associate Talia Nimmer re reply brief issues.

$650

0.4

0.4

0.0

$260

7/18/23

Steven Thong

Include docket tracking for any further filings and monitoring

$200

0.1

0.1

0.0

$20


 

7/18/23

Steven Thong

Review Westlaw Dockets and pull conformed Opening and Opposition Brief.

$200

0.2

0.2

0.0

$40

7/18/23

Steven Thong

Communication with Attorney Talia N. regarding filing of RJN and Reply brief.

$200

0.1

0.1

0.0

$20

7/18/23

Talia Nimmer

Phone call with client Walter Lamb re [redacted]

$450

0.2

0.2

0.0

$90

7/18/23

Talia Nimmer

Reviewing client Walter Lamb's [redacted] revising reply brief and request for judicial notice, and sending updated drafts to Mitch Tsai for review

$450

2.4

1.9

0.5

$855

7/18/23

Talia Nimmer

Meeting with Mitch Tsai and associate Naira Soghbatyan re reply brief arguments

$450

0.4

0.4

0.0

$180

7/18/23

Talia Nimmer

Revising and rearranging reply brief and request for judicial notice to incorporate Mitch Tsai's recommendations and requests

$450

1.8

1.4

0.4

$630

7/19/23

Mitchell Tsai

Reviewing and editing draft reply brief.

$800

1.4

0.7

0.7

$560

7/19/23

Mitchell Tsai

Videoconference with Senior Associate Naira Soghbatyan, Associate Talia Nimmer and Paralegal Steven Thong editing final brief.

$800

1.9

1

0.9

$800

7/19/23

Naira Soghbatyan

Reviewed and further edited the reply brief, prepared by associate Talia Nimmer.

$650

4.5

2.6

1.9

$1,690

7/19/23

Naira Soghbatyan

Reviewed the reply brief and addressed issues of concern.

$650

1.9

1

0.9

$650

7/19/23

Steven Thong

Review Westlaw docket and pull Court Order from Los Angeles Superior Court indicating advancement of trial. Update calendar and notify Attorney Talia N. and Attorney Naira S.

$200

0.2

0.2

0.0

$40

7/19/23

Steven Thong

Draft Table of Contents and Table of Authorities for Reply Brief. Discuss changes with Attorney Talia regarding citations.

$200

1.2

1.2

0.0

$240

7/19/23

Steven Thong

Video Conference Meeting with Attorneys Mitch T, Naira S, and Talia N. to discuss changes to Reply Brief and RJN.

$200

1.9

1.4

0.5

$280

7/19/23

Steven Thong

Finalize Reply Brief and Request for Judicial Notice and Efile/Serve via One Legal.

$200

0.3

0.3

0.0

$60

7/19/23

Steven Thong

Relay filed reply brief, RJN, and continuance to client, Walter.

$200

0.1

0.1

0.0

$20

7/19/23

Talia Nimmer

Reviewing Mitch Tsai's redlined to reply brief, revising reply brief in accordance with Mitch's suggestions, and sending revised draft to associate Naira Soghbatyan and Mitch Tsai for review

$450

1.1

0.8

0.3

$360

7/19/23

Talia Nimmer

Video conference with Mitch Tsai, paralegal Steven Thong, and associate Naira Soghbatyan discussing reply brief formatting and arguments

$450

2

1.4

0.6

$630

7/20/23

Steven Thong

Process Conformed Copies of Reply Brief and RJN

$200

0.1

0.1

0.0

$20

7/26/23

Mitchell Tsai

Preparing for trial. Reviewing and responding to e-mail from Naira Soghbatyan regarding administrative record

$800

0.5

0.5

0.0

$400

7/26/23

Naira Soghbatyan

Emailed Principal Mitch Tsai and associate Talia Nimmer about [redacted]; researched [redacted]

$650

0.4

0.4

0.0

$260

7/26/23

Talia Nimmer

Reviewing and responding to associate Naira Soghbatyan's email re helpful administrative record citations for trial

$450

0.2

0.2

0.0

$90

7/27/23

Naira Soghbatyan

Communicated with Principal Mitch Tsai re future steps; emailed opposing counsel with a copy of the Joint Appendix, requesting review and feedback by the end of today.

$650

0.2

0.2

0.0

$130

8/17/23

Talia Nimmer

Drafting trial outline

$450

3.6

2

1.6

$900


 

8/18/23

Talia Nimmer

Finalizing and sending trial outline to associate Naira Soghbatyan for review

$450

0.2

0.2

0.0

$90

8/23/23

Naira Soghbatyan

Reviewed and supplemented the trial outline prepared by associate Talia N.; conducted legal research for it; sent the outline back along with a new case found in support.

$650

3.6

1.3

2.3

$845

8/23/23

Naira Soghbatyan

Email re court reporters - sent to principal Mitch T. and the team.

$650

0.1

0.1

0.0

$65

8/24/23

Steven Thong

Review of Reporters and administrative task to determine Court Reporter for September 7, 2023 Trial. Outgoing call to Coalition Court Reporters to determine
quote for cost of reporting.

$200

0.3

0.3

0.0

$60

8/24/23

Steven Thong

Outgoing calls to Huntington Court Reporting & Aptus Court Reporting for quotes.

$200

0.3

0.3

0.0

$60

8/24/23

Steven Thong

Incoming call from Sean (Huntington Court eporter) to discuss pricing on Court
Reporting.

$200

0.1

0.1

0.0

$20

8/24/23

Talia Nimmer

Reviewing associate Naira Soghbatyan's redlines to trial outline

$450

0.4

0.4

0.0

$180

8/24/23

Talia Nimmer

Discussing court reporter costs and quotes with associate Naira Soghbatyan and paralegal Steven Thong

$450

0.3

0.3

0.0

$135

8/25/23

Christina Clifton

Prepare binder of Courtesy Copies. Unfortunately, we ran into a lot of delays -printing ~2,000 pages, going to the store for a 2-hole puncher & then again for metal prongs (ones in the office were too big). Plus, the hole puncher only can do 15 pages at a time so it took pretty much all afternoon.

$200

5

2

3.0

$400

8/25/23

Naira Soghbatyan

Helped the team prepare courtesy copies for the court.

$650

3.5

0.5

3.0

$325

8/25/23

Steven Thong

Outgoing call to Aptus Court Reporting to request for Mary Gagne regarding quotes for Court Reporting. Outgoing email to Aptus Court Reporting for scheduling and quotes.

$200

0.3

0.3

0.0

$60

8/25/23

Steven Thong

Outgoing call and outgoing email to Veritext technicians to inquire on quote for Court Reporting.

$200

0.2

0.2

0.0

$40

8/25/23

Steven Thong

Communication between Attorney Naira S. and Christina C. regarding preparation of documents to be submitted to Department 82. Prepare documents and confirm necessary tasks for providing courtesy copies to the Court.

$200

1.7

1

0.7

$200

8/25/23

Steven Thong

Communication with Aptus Court Reporting regarding pricing of reporting/transcripts.

$200

0.1

0.1

0.0

$20

8/25/23

Talia Nimmer

Discussing providing the court with courtesy copies with associate Naira Soghbatyan and paralegal Steven Thong

$450

0.3

0.3

0.0

$135

8/28/23

Mitchell Tsai

Reviewing request for direction on delivery of courtesy copies from Paralegal Steven Thong. Drafting e-mail in response.

$800

0.1

0.1

0.0

$80

8/28/23

Naira Soghbatyan

Communicated with principal Mitch T. and paralegal Steven T. re sending the courtesy copies to the Court; met with Nationwide messenger to deliver the copies and provided verbal instructions on the manner of delivery.

$650

0.2

0.2

0.0

$130

8/28/23

Naira Soghbatyan

Communicated with opposing counsel re court reporter issue and sent a follow up email for same.

$650

0.1

0.1

0.0

$65


 


8/28/23

Steven Thong

Discuss arrangements of courtesy copies with Attorney Naira S. and Paralegal Christina C. Arrange for delivery of Courtesy Copies to Department 82 through Nationwide.

$200

0.5

0.5

0.0

$100

8/28/23

Steven Thong

Process Nationwide confirmation of delivery of Courtesy Copies.

$200

0.1

0.1

0.0

$20

8/28/23

Talia Nimmer

Discussing court reporter quotes and emailing opposing counsel Gary Tavetain re splitting costs with associate Naira Soghbatyan and paralegal Steven Thong

$450

0.3

0.3

0.0

$135

8/29/23

Steven Thong

Discuss with Attorney Naira S. regarding scheduling Court Report for Department 82. Perform outgoing email to Court Report to schedule remote appearance.

$200

0.3

0.3

0.0

$60

8/29/23

Steven Thong

Discuss confirmation and further request of information with Attorney Naira S. Update Proof of Service template and provide information to Aptus Court Reporting for further processing.

$200

0.4

0.4

0.0

$80

8/31/23

Naira Soghbatyan

Observed trial in Calabasas case, in preparation of trial on Sep 7, 2023 in the same dept. 82.

$650

0.9

0.9

0.0

$585

9/5/23

Mitchell Tsai

Phone call with client regarding Thursday, September 7, 2023 trial hearing.

$800

0.2

0.2

0.0

$160

9/5/23

Steven Thong

Discuss with Attorney Attorney Talia N. and Mitchell T. regarding Court Reporter Fee and Transcription. Outgoing email to Aptus to include standard transcript.

$200

0.3

0.3

0.0

$60

9/5/23

Steven Thong

Outgoing call to Department 82 to inquire on tentative rulings.

$200

0.1

0.1

0.0

$20


 

9/5/23

Steven Thong

Outgoing email to Aptus to confirm splitting fees and fees of transcripts.

$200

0.1

0.1

0.0

$20

9/5/23

Talia Nimmer

Discussing court reporter status and estimate with Mitch Tsai and paralegal Steven Thong and sending follow up email to Fish and Game Commission counsel Gary Tavetian

$450

0.3

0.3

0.0

$135

9/5/23

Talia Nimmer

Sending client Walter Lamb court reporter estimate

$450

0.2

0.2

0.0

$90

9/5/23

Talia Nimmer

Asking paralegal Steven Thong to contact court re tentative ruling timing

$450

0.1

0.1

0.0

$45

9/6/23

Mitchell Tsai

Preparing for trial. Reviewing outline

$800

2.2

1

1.2

$800

9/6/23

Steven Thong

Review email from Office of Attorney General and relay to Attorney Naira S. and Attorney Talia N. for further proceedings.

$200

0.1

0.1

0.0

$20

9/6/23

Steven Thong

Outgoing communication to client to inquire on remote appearance.

$200

0.1

0.1

0.0

$20

9/6/23

Steven Thong

Schedule Attorney Naira S. for Court Connect

$200

0.1

0.1

0.0

$20

9/6/23

Steven Thong

Contact Attorney Talia N. for Walter's Number. Outgoing call to client Walter to inquire on in person or remote hearing.

$200

0.2

0.2

0.0

$40

9/6/23

Talia Nimmer

Discussing transcript costs with Aptus Court Reporters staff and emailing client Walter Lamb estimate

$450

0.3

0.3

0.0

$135

9/6/23

Talia Nimmer

Checking los angeles superior court website for tentative ruling

$450

0.2

0.2

0.0

$90

9/6/23

Talia Nimmer

Discussing trial appearance plan with Mitch Tsai

$450

0.2

0.2

0.0

$90

9/7/23

Mitchell Tsai

Preparing for trial hearing.

$800

3.3

2

1.3

$1,600

9/7/23

Mitchell Tsai

Attending and arguing at trial hearing.

$800

1.7

1.7

0.0

$1,360

9/7/23

Mitchell Tsai

Travel to and from trial hearing.

$800

1

1

0.0

$800

9/7/23

Mitchell Tsai

Phone call with client regarding trial hearing.

$800

0.1

0.1

0.0

$80

9/7/23

Naira Soghbatyan

Reviewed the trial outline; reviewed and responded to questions by principal Mitch T. and associate Talia N re compatibility issues and statutes/regulations.

$650

0.3

0.3

0.0

$195

9/7/23

Naira Soghbatyan

Prepared for trial, reviewing briefs and the trial outline; reviewed and responded to questions from principal Mitch T.. and associate Talia N. re trial; reviewed the
tentative; had a call with Mitch T. and Talia N. re issues in the tentative; attended and appeared at the hearing; communicated with the Aptus Court reporting to ensure court reporter will be there.

$650

5.6

4

1.6

$2,600

9/7/23

Steven Thong

Continuously check for availability of Tentative Ruling. Process Tentative Ruling and forward copy to client.

$200

0.3

0.3

0.0

$60

9/7/23

Talia Nimmer

Preparing for trial with Mitch Tsai

$450

2.6

2

0.6

$900

9/7/23

Talia Nimmer

Attending trial with Mitch Tsai

$450

1.8

1.8

0.0

$810

9/11/23

Hind Baki

Per CFO Hongmiao Li's request, tried to find a press release about Ballona Wetlands latest victory; added a news link to the case notes.

$200

0.2

0

0.2

$0

9/11/23

Naira Soghbatyan

Communicated with Paralegal Steven T. and associate Talia N. re preparing the judgment/write and order; contacted the clerk of Dept. 82 to see if there is a separate signed ruling by the court; communicated with Talia N. and Principal Mitch T. re costs and attorney fees

$650

0.2

0.2

0.0

$130

9/11/23

Steven Thong

Review docket tracking and pull court minute orders and ruling document.

$200

0.2

0.2

0.0

$40

9/11/23

Steven Thong

Discuss final ruling document with Attorney Mitchell T. and Naira S. confirm with Naira S. final ruling document and relay information to Attorney Mitchell T.

$200

0.3

0.3

0.0

$60

9/11/23

Steven Thong

Processed Los Angeles Superior Court ruling and forward information to Attorneys.

$200

0.1

0.1

0.0

$20

9/11/23

Steven Thong

Word conversion of Tentative Ruling and Final Ruling. Create compared version to check for any differences.

$200

0.5

0.5

0.0

$100

9/11/23

Talia Nimmer

Calculating and calendaring attorney fee and proposed judgment deadlines

$450

0.3

0.3

0.0

$135

9/11/23

Talia Nimmer

Drafting proposed judgment and proposed writ of mandate

$450

0.6

0.6

0.0

$270

9/11/23

Talia Nimmer

Reviewing judge's final ruling

$450

0.3

0.3

0.0

$135

9/12/23

Mitchell Tsai

Reviewing final ruling from court as well as a compare of final ruling to tentative ruling.

$800

0.2

0.2

0.0

$160

9/12/23

Mitchell Tsai

Drafting and editing Proposed Judgment and Petition for Writ of Mandate.

$800

2

1.5

0.5

$1,200

9/12/23

Naira Soghbatyan

Revised and supplemented the draft Judgment and Writ prepared by associate Talia N., communicated with Talia N. and principal Mitch T. re timing of sending those to the opposing counsel; sent the revised drafts along with the summary of revisions
to the team, including associate Talia N. and principal Mitch T.

$650

2.4

1.5

0.9

$975

9/12/23

Talia Nimmer

Discussing proposed judgment deadline with Mitch Tsai and associate Naira Soghbatyan

$450

0.3

0.3

0.0

$135

9/12/23

Talia Nimmer

Reviewing associate Naira Soghbatyan's revisions to proposed judgement and writ of mandate

$450

0.3

0.3

0.0

$135

9/13/23

Mitchell Tsai

Reviewing revised proposed judgment from Associate Naira Soghbatyan.

$800

0.2

0.2

0.0

$160

9/13/23

Naira Soghbatyan

Reviewed email communications re proposed judgment and responded to those.

$650

0.1

0.1

0.0

$65

9/13/23

Naira Soghbatyan

Revision in the proposed judgment.

$650

0.1

0.1

0.0

$65

9/13/23

Talia Nimmer

Reviewing, revising, finalizing, and sending to Fish and Game Commission counsel for review proposed judgment and writ of mandate

$450

0.4

0.4

0.0

$180

9/13/23

Talia Nimmer

Discussing amending proposed judgment with firm name change and attorney fee specification with associate Naira Soghbatyan

$450

0.3

0.3

0.0

$135

9/14/23

Mitchell Tsai

Reviewing proposed modification to Proposed Judgment from co-counsel Sabrina Venskus. Approving changes for submission to opposing counsel Gary Tevetian for California Fish & Game Commission.

$800

0.2

0.2

0.0

$160

9/14/23

Steven Thong

Discuss with Attorney Mitch T. regarding billables spreadsheet.

$200

0.1

0.1

0.0

$20

9/14/23

Steven Thong

Review and sort through billables and expenses. Discuss with Attorney Mitchell Tsai.

$200

1.5

1.5

0.0

$300

9/15/23

Mitchell Tsai

Reviewing timesheets produced by former counsel fo record Sabrina Venskus.
Drafting e-mail to Sabrina Venskus with follow-up questions.

$800

0.1

0.1

0.0

$80

9/15/23

Mitchell Tsai

Reviewing and preparing report on time entries and expenses.

$800

0.1

0.1

0.0

$80

9/15/23

Talia Nimmer

Reviewing Commission attorney Daniel Lucas's redlines to proposed judgment and writ of mandate and disussing with associate Naira Soghbatyan

$450

0.3

0.3

0.0

$135

9/16/23

Mitchell Tsai

Reviewing Proposed Judgment from Dept of Fish & Game.

$800

0.2

0.2

0.0

$160

9/17/23

Mitchell Tsai

Reviewing changes to proposed judgment and writ from opposing counsel Daniel Lucas. Drafting revised judgment and writ in response.

$800

0.8

0.8

0.0

$640

9/18/23

Naira Soghbatyan

Reviewed the ruling and the proposed revisions by both the Respondent and also Principal Mitch T.; revised the judgment and writ, and also drafted an email about those revisions for the opposing counsel, pending principal Mitch T.'s review; emailed the revised drafts and the draft email to Principal Mitch T.

$650

2.4

1.5

0.9

$975

9/18/23

Talia Nimmer

Saving notes on clio re ruling issuance, proposed judgment, and meet and confer dates

$450

0.2

0.2

0.0

$90

9/20/23

Mitchell Tsai

Reviewing and editing draft e-mail and proposed judgment and writ prepared by Associate Naira Soghbatyan.

$800

0.5

0.5

0.0

$400

9/20/23

Steven Thong

Review incoming email from Aptus Court Reporting. Create account and process September 07, 2023 Transcript for team's review.

$200

0.3

0.3

0.0

$60

9/21/23

Naira Soghbatyan

Reviewed the proposed judgment and writ and the latest revisions by principal
Mitch T.; revised the draft email; sent the final versions to the opposing party, along with the email as to why Petitioner declines to incorporate Respondent's proposed
revisions.

$650

0.4

0.4

0.0

$260

9/21/23

Steven Thong

Discuss transcripts with Attorney Naira S. and forward working link and copy.

$200

0.1

0.1

0.0

$20


 

9/21/23

Steven Thong

Discuss Administrative task with Attorney Naira S. regarding outgoing call to Court Clerk to confirm Proposed Judgment filing.

$200

0.1

0.1

0.0

$20

9/21/23

Talia Nimmer

Discussing second proposed judgment email to Fish and Game Commission counsel
with associate Naira Soghbatyan

$450

0.2

0.2

0.0

$90

9/21/23

Talia Nimmer

Forwarding associate Naira Soghbatyan's email to Fish and Game Commissionn
counsel to client Walter Lamb

$450

0.1

0.2

-0.1

$90

9/22/23

Mitchell Tsai

Reviewing and discussing proposed judgment and writing with Associates Naira Soghbatyan and Talia Nimmer

$800

0.1

0.1

0.0

$80

9/25/23

Malou Reyes

Review party names and draft Notice of Change of Firm name in preparation for service to all parties.

$200

0.4

0.4

0.0

$80

9/25/23

Mitchell Tsai

Discussing proposed judgment meet and confer timing with Associate Naira Soghbatyan.

$800

0.1

0.1

0.0

$80

9/25/23

Steven Thong

Review instructions by Attorney Naira S. regarding outgoing communication to Courtroom 82 to clarify some questions. Call Department 82 for clarifications on filings and Proposed Writ.

$200

0.5

0.5

0.0

$100

9/25/23

Steven Thong

Communication with Attorney Naira S. regarding proposed judgement and filing
procedures in Department 82. Further discussion of deadlines Proposed Judgment and deadline of Memo of Costs according to 3.1700 Rule of the Court.

$200

0.5

0.5

0.0

$100

9/25/23

Steven Thong

Communication with Paralegal Christina C. regarding physical copies of Court's Transcripts.

$200

0.1

0.1

0.0

$20

9/26/23

Malou Reyes

Review and revise Notice of Change of Firm Name.

$200

0.3

0.2

0.1

$40

9/26/23

Mitchell Tsai

Reviewing and responding to client e-mail regarding [Proposed] Judgment.

$800

0.1

0.1

0.0

$80

9/26/23

Talia Nimmer

Discussing with Mitch Tsai and emailing Fish and Game Commission re latest draft of proposed judgment and writ

$450

0.2

0.2

0.0

$90

9/27/23

Mitchell Tsai

Discussing proposed judgment with Associates Talia Nimmer and Naira Soghbatyan.

$800

0.1

0.1

0.0

$80

9/27/23

Steven Thong

Review and respond to Aptus Reporting for further processing of billing invoice.

$200

0.1

0.1

0.0

$20

9/27/23

Talia Nimmer

Reviewing and discussing with Mitch Tsai and Naira Soghbatyan FGC's proposed judgment and writ revisions

$450

0.4

0.4

0.0

$180

9/27/23

Talia Nimmer

Sending email to FGC counsel Daniel Lucas re latest draft of proposed judgment & writ

$450

0.2

0.2

0.0

$90

9/28/23

Mitchell Tsai

Reviewing and editing draft proposed judgment and declaration.

$800

0.3

0.3

0.0

$240

9/28/23

Mitchell Tsai

Reviewing revised Nimmer declaration.

$800

0.1

0.1

0.0

$80

9/28/23

Steven Thong

Discuss filing & serving of proposed judgement, proposed writ, and declaration. Finalize filing documents, serve & file.

$200

0.5

0.5

0.0

$100

9/28/23

Talia Nimmer

Drafting declaration in support of proposed judgment and finalizing proposed judgment and proposed writ for filing

$450

0.6

0.6

0.0

$270

9/28/23

Talia Nimmer

Discussing declaration regarding proposed judgment with Mitch Tsai and revising accordingly

$450

0.5

0.3

0.2

$135

9/28/23

Talia Nimmer

Discussing declaration regarding proposed judgment with associate Naira Soghbatyan and revising declaration accordingly

$450

0.4

0.2

0.2

$90

9/28/23

Talia Nimmer

Discussing filing proposed judgment, proposed writ, and Talia Nimmer declaration with paralegal Steven Thong

$450

0.3

0.3

0.0

$135

9/29/23

Steven Thong

Process conformed copies of Proposed Judgment and Writ.

$200

0.1

0.1

0.0

$20

9/29/23

Steven Thong

Internal communication with Attorney Talia N. and Attorney Mitchell T. regarding lodging/filing of Proposed Judgment

$200

0.1

0.1

0.0

$20

9/29/23

Talia Nimmer

Discussing proposed judgment courtesy copy delivery with paralegal Steven Thong
and Mitch Tsai

$450

0.2

0.2

0.0

$90

10/9/23

Mitchell Tsai

Reviewing and responding to client e-mail regarding [Proposed] Judgment.

$800

0.2

0.2

0.0

$160

10/9/23

Steven Thong

Review calendar and communications regarding oppositions to proposed judgment. Update calendar with opposition deadline.

$200

0.1

0.1

0.0

$20

10/16/23

Malou Reyes

Finalize and e-file, e-serve Notice of Firm name change with One Legal. Receive and categorize confirmation.

$200

0.6

0.6

0.0

$120

10/17/23

Mitchell Tsai

Reviewing and responding to e-mail from client regarding proposed judgment.

$800

0.1

0.1

0.0

$80

10/17/23

Steven Thong

File review and research on Westlaw for any signed proposed judgment.

$200

0.1

0.1

0.0

$20

10/19/23

Steven Thong

Discuss file and status of judgment with Attorney Naira S.

$200

0.1

0.1

0.0

$20

10/23/23

Talia Nimmer

Discussing proposed judgment status with Mitch Tsai and paralegal Steven Thong

$450

0.2

0.2

0.0

$90

10/27/23

Mitchell Tsai

Phone call with client regarding proposed judgment and timeframe for release.

$800

0.1

0.1

0.0

$80

10/27/23

Steven Thong

Review of Hard Expense excel spread sheet and update Memorandum of Costs.

$200

0.3

0.3

0.0

$60

11/1/23

Steven Thong

Research status of Judge's judgment and call Court Clerk to inquire on status of judgment and status conference.

$200

0.3

0.3

0.0

$60

11/1/23

Talia Nimmer

Discussing proposed judgment status with paralegal Steven Thong and associate Naira Soghbatyan

$450

0.2

0.2

0.0

$90

11/6/23

Naira Soghbatyan

Communicated with paralegal Steven T., principal Mitch T., and associate Talia N. re
judgment entered and actions to be taken, including filing of the request for dismissal.

$650

0.1

0.1

0.0

$65

11/6/23

Naira Soghbatyan

Communicated with principal Mitch T., associate Talia N., and paralegal Steven T. re judgment and any future actions to take.

$650

0.1

0.1

0.0

$65

11/6/23

Naira Soghbatyan

Called the court clerk to find out about the writ and why it was not signed and to find out if anything needs to be done on our end; updated the legal team about it.

$650

0.4

0.3

0.1

$195

11/6/23

Steven Thong

Research into status of Judgment. Look through westlaw and client's returned Judgment. Process and relay to Attorney Talia N.

$200

0.2

0.2

0.0

$40

11/6/23

Steven Thong

Firm communication regarding Proposed Writ of Mandate issuance and lodging.

$200

0.1

0.1

0.0

$20

11/6/23

Steven Thong

Outgoing calls to Department 82 and General Court Clerk to inquire on signed proposed writ of mandate insuance.

$200

0.3

0.3

0.0

$60

11/6/23

Steven Thong

Discuss Proposed Writ of Mandate with Attorney Talia N. to inquire on lodging procedures.

$200

0.2

0.2

0.0

$40

11/6/23

Steven Thong

Process Conformed Copy Proposed Judgment, Minute Order, Notice of Entry of Judgment, and Certificate of Mailing from Westlaw.

$200

0.2

0.2

0.0

$40


 

11/6/23

Steven Thong

Discussion with Attorney Naira S. regarding previous September 28, 2023 filing of Declaration, Writ, and Proposed Judgment.

$200

0.1

0.1

0.0

$20

11/6/23

Talia Nimmer

Reviewing and responding to client email re judgment entry and status conference
and directing paralegal Steven Thong to calendar memorandum of costs deadline

$450

0.3

0.3

0.0

$135

11/6/23

Talia Nimmer

Discussing individual attorney and paralegal rates with paralegal Steven Thong and Mitch Tsai re memorandum of costs preparation

$450

0.3

0.3

0.0

$135

11/6/23

Talia Nimmer

Researching California rules of court re deadline to file motion for attorneys fees, discussing with Mitch Tsai and paralegal Steven Thong, and calendaring deadline

$450

0.3

0.2

0.1

$90

11/6/23

Talia Nimmer

Discussing Court's minute order re dismissing declaratory relief claim with Mitch Tsai and associate Naira Soghbatyan

$450

0.2

0.2

0.0

$90

11/6/23

Talia Nimmer

Discussing whether to lodge writ of mandate with court with associate Naira Soghbatyan, Mitch Tsai, and paralegal Steven Thong and drafting notice of lodging

$450

0.4

0.2

0.2

$90

11/6/23

Talia Nimmer

Drafting request for dismissal re declaratory relief claim and proof of service

$450

0.3

0.3

0.0

$135

11/7/23

Mitchell Tsai

Reviewing and editing Notice of Lodging of Proposed Writ of Mandate.

$800

0.2

0.2

0.0

$160

11/7/23

Mitchell Tsai

Reviewing Request for Dismissal.

$800

0.3

0.3

0.0

$240


 

11/7/23

Steven Thong

Research into Entity/address for Physical Process Serving. Outgoing calls for California Fish and Games Commission and Legal Counsel Michael Yaun to inquire on Physical Process Serving.

$200

0.4

0.4

0.0

$80

11/7/23

Steven Thong

Schedule with Nationwide Physical Process Serving to California Fish and Game
Commission

$200

0.2

0.2

0.0

$40

11/7/23

Talia Nimmer

Discussing contacting court clerk re unsigned writ of mandate with associate Naira Soghbatyan

$450

0.2

0.2

0.0

$90

11/7/23

Talia Nimmer

Discussing entry of writ of mandate and service on the fish and game commission
with Mitch Tsai and paralegal Steven Thong

$450

0.2

0.2

0.0

$90

11/7/23

Talia Nimmer

Finalizing and sending request for dismissal re declaratory relief claim to Mitch Tsai for review/approval

$450

0.2

0.2

0.0

$90

11/7/23

Talia Nimmer

Discussing request for dismissal with associate Naira Soghbatyan and Mitch Tsai and revising language to prayer for relief (i) and (ii)

$450

0.3

0.3

0.0

$135

11/8/23

Steven Thong

Finalize Request for Dismissal, File/Serve, and submit Courtesy Copy to Dept 82.

$200

0.3

0.3

0.0

$60

11/8/23

Steven Thong

Review notice from Nationwide regarding failed Service of Process. Attempt contact with California Fish & Game Commission and discuss with Attorney Talia N.

$200

0.3

0.3

0.0

$60

11/8/23

Steven Thong

Outgoing call to California Fish and Game  Commission and outgoing call to Nationwide to determine logistics of process serving.

$200

0.3

0.3

0.0

$60

11/8/23

Steven Thong

Process conformed Request for Dismissal.

$200

0.1

0.1

0.0

$20

11/8/23

Steven Thong

Process Nationwide Proof of Service and relay information to Walter that service has been completed. Update calendar to reflect 180 day return deadline.

$200

0.2

0.2

0.0

$40

11/8/23

Talia Nimmer

Discussing filing/serving request for dismissal with paralegal Steven Thong

$450

0.1

0.1

0.0

$45

11/8/23

Talia Nimmer

Discussing writ of mandate personal service attempt and next steps with Mitch Tsai and paralegal Steven Thong

$450

0.3

0.3

0.0

$135

11/8/23

Talia Nimmer

Discussing service of writ, notifying client, and calendaring return deadline with paralegal Steven Thong

$450

0.2

0.2

0.0

$90

11/9/23

Mitchell Tsai

Reviewing and editing Notice of Filing of Proof of Service of Writ of Mandate.

$800

0.2

0.2

0.0

$160

11/9/23

Steven Thong

Finalize and File/Eserve Notice of Filing of Proof of Service of Writ of Mandate

$200

0.2

0.2

0.0

$40

11/9/23

Steven Thong

Process conformed copy of Notice of Filing of Proof of Service of Writ of Mandate

$200

0.1

0.1

0.0

$20

11/9/23

Steven Thong

Check on status of Request for Dismissal and if November 16, 2023 Status Conference is still happening.

$200

0.1

0.1

0.0

$20

11/9/23

Talia Nimmer

Drafting notice of proof of service of writ of mandate and sending to Mitch Tsai for review

$450

0.4

0.4

0.0

$180

11/9/23

Talia Nimmer

Reviewing Mitch Tsai's redline to Notice of Filing proof of service of writ of mandate and discussing filing and serving with paralegal Steven Thong

$450

0.2

0.2

0.0

$90

11/9/23

Talia Nimmer

Checking court docket re whether status conference was taken off calendar

$450

0.2

0.2

0.0

$90

11/9/23

Talia Nimmer

Discussing writ of mandate return deadline with Mitch Tsai

$450

0.1

0.1

0.0

$45

11/13/23

Mitchell Tsai

Discussing filing of request for dismissal and reviewing docket with Associate Talia
Nimmer and Paralegal Steven Thong.

$800

0.1

0.1

0.0

$80

11/13/23

Naira Soghbatyan

Zoom meeting with principal Mitch T., associate Talia N., and paralegal Steven T. to
discuss fee motion, request for dismissal, and costs memorandum issues.

$650

0.7

0.5

0.2

$325

11/13/23

Steven Thong

Discussion with Attorney Talia N. and Mitchell T. regarding Request for Dismissal and Status Conference.

$200

0.1

0.1

0.0

$20

11/13/23

Steven Thong

Outgoing call to Department 82 to inquire on status of Request for Dismissal. Relay
information to attorneys.

$200

0.1

0.1

0.0

$20

11/13/23

Talia Nimmer

Reviewing case docket and discussing status conference and request for dismissal status with Mitch Tsai and paralegal Steven Thong

$450

0.2

0.2

0.0

$90

11/13/23

Talia Nimmer

Calling and speaking to court clerk re request for dismissal description and
processing

$450

0.2

0.2

0.0

$90

TOTAL:

$113,680

 

 

Based on the foregoing, the Court finds that petitioner is entitled to the lodestar amount of $118,000 ($4,320 Venskus + $113,680 Tsai).

 

2.            Requests for Multiplier

 

            Petitioner also seeks a 1.5 multiplier of the lodestar amount. Courts look to the following factors, among others, in determining whether a multiplier is appropriate: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers ….” (See Serrano v. Priest (1977) 20 Cal.3d 25, 48.)

 

Here, the Court finds that the requested 1.5 multiplier is not warranted. Even if 14 C.C.R. § 630 was not the subject of case law, the resolution of this case required a straightforward review of the record to determine whether the parking lots and baseball field were ever the subject of a compatibility determination. Although counsel represented petitioner on a partial contingency basis, the Court finds that the substantial lodestar award as set forth above sufficiently compensates counsel for their efforts. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1176.) 

 

Regardless of any budget deficit,[1] the Commission’s repeated denials of petitioner’s request for a compatibility determination, as discussed in the Court’s 9/8/23 Ruling on the First Amended Petition for Writ of Mandate, warrants against imposition of a negative multiplier. (See Rogel v. Lynwood Redevelopment Agency (2011) 194 Cal.App.4th 1319, 1331, quoting Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 400-01 [taxpayer burden should not be considered where a governmental entity “chooses to defend its conduct through lengthy and complex litigation”].)

 

3.            Fees on Fees

 

With respect to the fees incurred in obtaining fees, petitioner seeks a total of $54,220, calculated as follows:

 

ATTORNEY

HOURS

RATE

TOTAL

Mitchell Tsai

20.7

$800/hour

$16,560.00

Naira Soghbatyan

1.2

$650/hour

$780.00

Talia Nimmer

30.6

$450/hour

$13,770.00

Paralegal

21.8

$200/hour

$4,360.00

Estimated Time for Motion Reply and Hearing

30 hours

$625/hour (blended rate)

$18,750.00

TOTAL:

$54,220.00

 

The Court finds that the hours claimed for the fee motion are excessive. Considering attorney Tsai’s averment that Mitchell M. Tsai Law Firm “almost entirely works on public-interest environmental litigation” (Tsai Decl. ¶ 6), this routine fee motion should not have taken as many hours as claimed by counsel.

 

In the opposition, respondent suggested that petitioner be awarded fees based on 8 hours for the motion, 4 hours for the reply, and 3 hours for attending the hearing, a total of 15 hours. (Opp. at 18:14-16.) The Court finds respondent’s suggestion is reasonable.


 

Petitioner’s counsel calculated the blended hourly rate as $625 per hour. (Tsai Decl. ¶ 23.) Counsel does not explain how this rate was calculated. The Court calculates the blended rate to be $525 per hour ([$800 Tsai + $650 Soghbatyan + $450 Nimmer + $200 paralegal] ÷ 4 = $525 per hour).

 

Accordingly, petitioner is awarded $7,875 for the fee motion (15 hours x $525/hour blended rate).

 

III.     Conclusion

 

The motion is GRANTED IN PART. Using the appropriate lodestar approach, and based on the foregoing findings and in view of the totality of the circumstances, the total and reasonable amount of attorney fees incurred for the work performed in connection with the writ petition is $125,875 ($4,320 Venskus + $113,680 Tsai + $7,875 fee motion). Such fees are awarded to petitioner Ballona Wetlands Land Trust and against respondent California Fish and Game Commission.



[1]           Petitioner’s evidentiary objections to documents concerning the budget of the State of California are OVERRULED.



Case Number: 21STCV03186    Hearing Date: January 30, 2024    Dept: 82

MOTION FOR RECONSIDERATION

  

Date:               1/30/24 (1:30 PM)

Case:                           Edwin Villagonzalo et al. v. Hyundai Motor America (21STCV03186)

 

TENTATIVE RULING:    

 

Plaintiffs Edwin Villagonzalo and Carlisle Villagonzalo’s Motion for Reconsideration is DENIED. 

 

The Order for which plaintiffs seek the Court’s reconsideration was issued on August 31, 2021.  At the hearing at which the Court made the Order in question, both parties waived notice thereof.  (8/31/21 Minute Order.)  Plaintiffs did not file the instant Motion for Reconsideration until over two years later on October 19, 2023.  CCP § 1008(a) requires a motion for reconsideration to be brought “within 10 days after service upon the party of written notice of entry of the order.” Accordingly, the instant motion is untimely and must be DENIED.

 

However, pursuant to CCP § 1008(c), “at any time,” the Court may on its own motion “reconsider a prior order it entered . . . and enter a different order” where the Court “determines there has been a change of law that warrants it.”  For the reasons that follow, the Court hereby VACATES its August 31, 2021 Order compelling arbitration and enters a new and different Order denying defendant Hyundai Motor America’s Motion to Compel Arbitration in this matter.

 

In deciding whether to reconsider a prior order on its own motion, the Court “may consider a number of factors in determining whether to exercise its discretion, including the importance of the change of law, the timing of the motion, and the circumstances of the case.” (Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 107, citing Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 769.)  As discussed below, notwithstanding the other factors the Court may consider, due to the importance of the change of law, the Court finds that granting relief under CCP § 1008(c) is appropriate here.

 

Before proceeding to discuss the change in the law, the Court pauses to consider the other relevant factors for reconsideration on the Court’s own motion, which would otherwise counsel strongly in favor of leaving the Court’s over two- and one-half year old decision in effect.  As noted above, the Court’s decision to compel arbitration was issued in August 2021.  Thereafter, in the ensuing years, the Court held no fewer than seven different hearings and status conferences to monitor the progress of the Court-ordered arbitration—3/2/22; 8/31/22; 12/9/22; 2/3/23; 2/17/23; 4/26/23; 5/31/23—including hearings on Orders to Show Cause why the case should not be dismissed for plaintiffs’ failure to proceed with arbitration as ordered by the Court. Consistent with this failure by plaintiffs to meaningfully proceed, defendants describe in their supplemental brief how plaintiffs “through their counsel have done everything in their power to ignore that order, delay the selection of an arbitral forum, and delay completion of arbitration.” (Def. Supp. Br. at 2.)  Indeed, even the bringing of the instant motion highlights plaintiffs’ extreme dilatoriness.  Plaintiffs filed the Motion for Reconsideration on October 19, 2023, citing appellate decisions evidencing a change in law, including Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324, which was decided more than six months prior on April 4, 2023.

 

Remarkably, plaintiffs dispute none of the foregoing.  Nor could they.  Instead, plaintiffs merely cite Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 60, for the proposition that “[t]he progress of the arbitration is not material when considering a change in the law affecting whether the arbitral forum was a correct one.”  The Court does not view this language lifted from Malek as establishing and/or limiting factors a court may consider when evaluating whether to exercise its discretion under CCP § 1008(c).  Were the court in Malek to have so intended, one would expect a far more expansive discussion of the applicable factors and acknowledgment that the court was setting forth or establishing a particular multi-factor test.  “Cases are not authority for propositions not considered therein.”  (State Farm Fire & Casualty Ins. Co . Pietak (2001) 90 Cal.App.4th 600, 614.)  Rather, Malek is best read as indicating that the progress of the arbitration was not a relevant factor in the court’s CCP § 1008(c) determination in that case.  (Cf. Farmers Ins. Exchange, 218 Cal.App.4th at 107 [discussing several factors court considered as applied to reconsideration in that case].)

 

Regardless, if this Court has interpreted Malek correctly, the apparently willful and extreme delay by plaintiffs to avoid arbitration nonetheless gives way to the change in law counseling in favor of CCP § 1008(c) reconsideration, as discussed below.  If plaintiffs’ read of Malek is correct, then the result is the same, because plaintiffs’ apparent bad faith and disregard of professional obligations through counsel are not relevant to the § 1008(c) determination currently before the Court—though it could very well prove to be quite relevant with regard to other determinations the Court may later make in this case.  (See, e.g., Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443-444 [upholding discretionary dismissal for failure to bring to trial within three years]; Snoeck v. Exaktime Innovations, Inc.(2023) 96 Cal.App.5th 908, 929-929 [affirming reduction of attorney’s fee lodestar amount due to attorney incivility, unprofessionalism, and other case-specific factors].)

 

As for the importance of the change in law, when the Court granted defendant’s motion to compel arbitration, Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 was the only case that opined on whether equitable estoppel allowed a manufacturer to compel a consumer to arbitration under the Retail Installment Sales Contract. The Felisilda court found that “because the [plaintiffs] expressly agreed to arbitrate claims arising out of the condition of the vehicle—even against third party nonsignatories to the sales contract—they are estopped from refusing to arbitrate their claim against [the nonsignatory manufacturer].”  (Felisilda, 53 Cal.App.5th at 497.)  Irrespective of whether the Court agreed with the Felisilda decision, the Court explicitly acknowledged in its Order compelling arbitration that “the outcome is dictated by binding authority in Felisilda.”  (8/31/21 Minute Order at 2.)

 

Since Felisilda, the Courts of Appeal in Ford Motor Warranty Cases, 89 Cal.App.5th at 1324, Montemayor v. Ford Motor Co. (2023) 92 Cal.App.5th 958, Kielar v. Superior Court (2023) 94 Cal.App.5th 614, and Yeh v. Superior Court (2023) 95 Cal.App.5th 264, 267 found the opposite – that equitable estoppel was inapplicable.

 

“Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) However, “where there is more than one appellate court decision, and such appellate decisions are in conflict . . . the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity, 57 Cal.2d at 456.) The California Supreme Court has granted review of Ford Motor, Montemayor, Kielar, and Yeh. The high court has allowed citation of Ford Motor “for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity…to choose between sides of any such conflict.” (Ford Motor Warranty Cases (Cal. 2023) 310 Cal.Rptr.3d 440.)

 

The Court agrees with Ford Motor’s holding that equitable estoppel does not permit the manufacturer to compel arbitration based on provisions in the sale contract regarding claims arising out of the condition of the vehicle. “[M]anufacturer vehicle warranties that accompany the sale of motor vehicles without regard to the terms of the sale contract between the purchaser and the dealer are independent of the sale contract.” (Ford Motor, 89 Cal.App.5th at 1334.) Plaintiffs’ claims arise out of defendant’s express written warranty, not their sales contract with the dealer. (Compl. ¶¶ 7, 8, 22, 25, 28, 32, 33, 34, 36, 38-41; cf. Ford Motor, 89 Cal.App.5th at 1335 [“[N]o plaintiffs alleged violations of the sale contracts’ express terms. Rather, plaintiffs’ claims are based on [the manufacturer]s statutory obligations to reimburse consumers or replace their vehicles when unable to repair in accordance with its warranty”].)

 

The Ford Motor court persuasively explains that the plaintiffs in Felisilda did not agree to arbitrate claims with third party nonsignatories. (See Felisilda, 53 Cal.App.5th at 490 [arbitration provision stated “ ‘Any claim or dispute, whether in contract, tort, statute or otherwise…between you and us or our employees, agents, successors or assigns, which arises out of or relates to ... condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration….’ ”].) The reference to any relationships with third parties was a “further delineation of the subject matter of claims the purchasers and dealers agreed to arbitrate.” (Ford Motor, 89 Cal.App.5th at 1334-35.) “The ‘third party’ language in the arbitration clause means that if a purchaser asserts a claim against the dealer (or its employees, agents, successors or assigns) that relates to one of these third party transactions, the dealer can elect to arbitrate that claim.” (Id. at 1335.) The “third party” language does not mean that plaintiffs agreed to arbitrate claims against defendant that arise out the condition of the vehicle.

 

Notwithstanding the similarity of the arbitration provisions in Felisilda and the instant case, because plaintiffs’ claims do not arise out of the Retail Installment Sales Contract, the Court finds that equitable estoppel does not apply. Plaintiffs’ claims are not subject to arbitration.  The importance of this change in the law cannot be understated.

 

For the foregoing reasons, pursuant to CCP § 1008(c), the Court hereby VACATES its August 31, 2021 Order compelling arbitration in this matter and instead hereby DENIES defendant’s Motion to Compel Arbitration.  Accordingly, the stay in this matter is hereby lifted.

 

As this matter has been assigned to the Honorable Joseph Lipner, Judge in Department 72, for all purposes as of August 7, 2023, plaintiff is ORDERED to contact Department 72 within seven days hereof to schedule further proceedings in this matter.



Case Number: 22STCP03985    Hearing Date: January 30, 2024    Dept: 82

Superior Court of California

County of Los Angeles

 

 

MARIA DE JESUS ABUNDIS,  

 

 

 

Petitioner,

 

 

 

 

 

Case No.

 

 

 

 

 

 

22STCP03985

 

vs.

 

 

CALIFORNIA DEPARTMENT OF REAL ESTATE, DOUGLAS R. MCCAULEY, REAL ESTATE COMMISSIONER,

 

 

 

 

 

 

 

 

 

 

Respondent.

 

[TENTATIVE] RULING ON VERIFIED PETITION FOR WRIT OF MANDATE

 

Dept. 82 (Hon. Curtis A. Kin)

 

 

 

 

 

 

 

 

Petitioner Maria De Jesus Abundis petitions for a writ of mandate directing respondent California Department of Real Estate, Douglas R. McCauley, Real Estate Commissioner to set aside the October 10, 2022 final decision to deny petitioner’s application for a Mortgage Loan Originator license and to issue said license.

I.       Factual Background

 

A.           Events Leading to Fraud Judgment

 


On July 17, 2004, the Department of Real Estate (“DRE”) issued petitioner Maria De Jesus Abundis a salesperson license.[1] (AR 68.) In October 2005, petitioner got a listing to sell a home. (AR 67, 400:18-20, 408.) The sellers called her on the phone telling her they wanted to sell their home. (AR 143, 207-08, 399, 403.) Petitioner prepared the paperwork for the transaction and spoke to her broker about it. (AR 404-05.) At least one of the sellers followed up with petitioner asking about the status of the transaction, as the seller was looking for money to feed their children during the holidays. (AR 404:25-405:9.) Petitioner spoke English and Spanish with her clients, the sellers. (AR 400.)

At the time, petitioner was 29 years of age. (AR 10 [no. 12], 408.) Petitioner was an independent contractor fulfilling a one-year commitment to broker Gerardo Montelongo. (AR 355-57, 396:21-25.) According to petitioner, Montelongo told her to close the transaction as soon as possible. (AR 404:20-24.) Petitioner did not receive a commission from the transaction. (AR 407:22-25.)

 

In February 2007, petitioner’s former clients sued her and Montelongo for fraud, among other causes of action, related to the sale of their home. (AR 143-59, 258-83.) The civil complaint alleged that petitioner, while working for employer-broker Montelongo, deceived her clients into participating as sellers of their property in an illusory real estate transaction involving a “straw man” buyer who was a friend of petitioner.  The employer-broker was a broker for both sides of the transaction, acted as the loan agent, and received a commission for the transaction.  After the transaction was consummated, the straw man buyer reconveyed the “sold” property back to the seller’s wife as a “gift.”  In connection with facilitating the transaction, petitioner was accused of making false representations to the sellers that they would obtain a lower interest rate and lower monthly payments, whereas the payments and interest rate instead increased after the transaction.  (AR 8, 146-47 [First Amended Complaint for Damages ¶12].)

 

In February 2010, petitioner appeared in pro se to defend herself at the bench trial in the civil fraud action. (AR 130, 132.) Montelongo did not appear at trial. (AR 130.)  In August 2010, the court entered its statement of decision in favor of plaintiff sellers and against petitioner and her former broker. (AR 131-32.)  In September 2010, the court entered judgment awarding $135,000 in damages against petitioner and her former broker “jointly and severally” for “fraud and breach of fiduciary duties,” $142,245.50 in attorney’s fees, and $11,959.00 in costs. (AR 130-32.)

 

The DRE suspended petitioner’s license and lifted it less than a month later after she paid $50,400 ($50,000 damages + $400 interest) to the DRE Recovery Account Program.  The DRE had become the assignee of the judgment after paying the civil fraud plaintiffs $50,000 for assignment of the plaintiffs’ judgment rights.  (AR 8-9, 68, 76, 123 [ROA 239], 409:2-7.) A partial satisfaction of judgment was subsequently filed. (AR 124 [ROA 247], 127, 350, 382.)

 

In July 2017, the judgment was renewed for the total sum of $426,563.22. (AR 78-82, 125 [ROA 253], 127, 352-54, 382-83.) No additional payments have been made toward satisfying the judgment. (AR 10 [¶ 12], 409:11-13 [petitioner stipulated that judgment remains outstanding less credit of $50,000].)

 

B.           Evidence Relevant to Rehabilitation

 

On June 20, 2012, the DRE issued a broker license to petitioner. (AR 68.) Other than the civil judgment discussed above, petitioner has not received any complaints or been subject to disciplinary action from the DRE. (AR 68.)

 

            Since the civil judgment, petitioner has been active in her church. (AR 335.) Petitioner leads counseling groups at retreats and church events, where she teaches about “justice, honesty, and integrity.” (AR 335.) Petitioner’s church hired her to assist with its lease contracts. (AR 335.)

 

            Several of petitioner’s religious and professional colleagues wrote letters supporting her character. (AR 333-42.) Petitioner contends that at least five of these colleagues were aware of petitioner’s civil liability. (AR 386:24-389:10.) Rosa Baltazar, a member of petitioner’s church, remarked how petitioner “[g]ives everyone an equal opportunity” and “treat[s] her clients…with respect, honesty, and

integrity.” (AR 336.) Kay Wilson-Bolton, president of Real Estate Magic, Inc. and former colleague of petitioner, wrote that petitioner was “one of the gems in the real estate business with a stellar career as a business leader.” (AR 338.) Miguel Guzman, who petitioner represented in the purchase of a house, described how petitioner provided him with excellent service for over a year to help his family secure a dream home. (AR 334.) Guzman, also a member of petitioner’s church, stated that she was a “role model for others at church and in the community.” (AR 334.)

 

            Petitioner has completed various training programs and vocational courses related to real estate transactions. In 2020, petitioner completed four consumer protection courses with Real Estate Trainers, Inc. as part of her continuing education, covering subjects like real estate red flags, real estate contracts, and disclosure obligations. (AR 347.) Petitioner has successfully completed her Realtor Code of Ethics Training with the National Association of Realtors. (AR 346, 348.)

           

Petitioner has also completed various ethics and morals courses in her church, on subjects like citizenship, charity, and integrity. (AR 383:12-384:21.)

 

C.           Application for Mortgage Loan Originator License Endorsement

 

In 2021, petitioner applied for a Mortgage Loan Originator (“MLO”) license endorsement to help Latina families in underserved communities secure home ownership. (AR 69, 71, 77, 410:23-411:14.) Petitioner disclosed the outstanding judgment. (AR 74 [D], 76, 77.) In her sworn application, petitioner stated she had been sued for a “real estate listing.” (AR 76-77.) Petitioner also stated: “[T]he judgment was given to the DRE and the DRE paid my enemy $50,000, so DRE suspended my license until I was able to pay the DRE back the $50,000.” (AR 76.)

 

D.           Administrative Proceedings

 

After receiving petitioner’s application for an MLO endorsement, the DRE issued a Statement of Issues finding cause to deny the application and requested a hearing. (AR 51-55, 59-66.) Petitioner requested an evidentiary hearing. (AR 51-56, 58.)

 

On July 13, 2022, an evidentiary hearing was held. (AR 5, 358-62.) The DRE’s exhibits were received in evidence by stipulation. (AR 22, 26-330 [exhibits 1-7], 361, 363.) Most of petitioner’s exhibits were received in evidence without limitation. (AR 22, 342-354 [exhibits B-D], 361, 379-85.) Petitioner’s character reference letters (AR 333-341 [exhibit A],) however, were received in evidence, but considered “as administrative hearsay.” (AR 23-24 and 379:6-17.)

 

Petitioner denied committing fraud. (AR 390:9-10 [“[Q]: Did you commit fraud?  THE WITNESS: No”].) When asked if she did anything wrong, petitioner blamed the broker:

 

Q:        Did you do anything wrong in this case?

 

A:        No.  I was following the instructions of the broker.  He was my broker.  It was my first listing.

 

(AR 390:12-14.)

 

When asked about her claimed rehabilitation, petitioner took no responsibility for what happened and instead faulted others and suggested she herself was a victim. (AR 389.)

 

Q:        What are you rehabilitated from?

 

A:        From -- from -- from the -- from the -- I felt defrauded. I felt like -- like a child that -- that is lied to. From -- from all the lies and deceit. And also it was very hard. And actually it has been very hard. It’s been hindering my -- well, you know, my person for a long time.

 

(AR 389:16-22.) When again asked whether she had done anything wrong, petitioner testified that she was “naïve” and “too trusting” and apologized “for that.” (AR 406:10-407:12.)

 

On August 3, 2022, Administrative Law Judge (“ALJ”) Eileen Cohn issued a proposed decision denying petitioner’s application of an MLO license endorsement. (AR 5-16.)

 

The ALJ acknowledged that petitioner, as a then new mother, made payment to the DRE Recovery Account “at great sacrifice to her and her young family.” (AR 10 [¶ 12].) Montelongo, the broker, has never made any payment. (AR 10 [¶ 12].) The ALJ acknowledged that petitioner’s real estate license has not been disciplined by the DRE, petitioner’s act of fraud and conviction were in the “distant past,” petitioner was the only defendant in the case to make restitution to the DRE, petitioner has a stable family life, and petitioner was active in her church and community. (AR 9-11 [summarizing mitigating and rehabilitation evidence], 15 [¶ 10].)

 

Nevertheless, the ALJ cited the civil case filed against petitioner as cause for denial. (AR 14 [¶ 7].) The proposed decision related that, given the stringent requirements for an MLO license endorsement, and the attention to detail required for such an endorsement, petitioner failed to provide sufficient evidence that the public would be protected by giving her the endorsement. (AR 6.) Despite having received certain evidence of rehabilitation, the ALJ ultimately concluded: “On the other hand, the civil judgment established a degree of carelessness in real estate transactions involving Spanish-speaking clients, the very clients [petitioner] intends to serve.” (AR 15 [¶ 10].)  The ALJ concluded as follows:

 

[Petitioner’s] evidence in mitigation and rehabilitation establishes her to be a trustworthy and competent real estate broker, but her activities as a real estate broker are segregated from the MLO, and given the circumstances of the civil judgment, there is insufficient evidence the public, especially the Spanish-speaking community she intends to serve, will be adequately protected by allowing her to combine her skills as a broker with that of a MLO which requires an attention to financial details.

 

(AR 15 [¶ 11].)

 

On September 20, 2022, Douglas R. McCauley, the Real Estate Commissioner (“Commissioner”), adopted the proposed decision, which became effective October 10, 2022. (AR 3-20.) The decision’s findings included, among other things, that: (1) denial of the application was based on the fraud civil judgment; (2) the judgment held petitioner jointly and severally liable for fraud; and (3) petitioner was 29 years of age at the time of the transaction, which resulted in the civil judgment against her. (AR 6-10.)

 

On October 6, 2022, the Commissioner denied petitioner’s petition for reconsideration. (AR 1-2.)

 

II.      Procedural History

 

            On November 7, 2022, petitioner Maria De Jesus Abundis filed a Verified Petition for Writ of Mandate. On November 30, 2023, respondent California Department of Real Estate, Douglas R. McCauley, Real Estate Commissioner filed an Answer.         On November 29, 2023, petitioner filed an opening brief. On December 21, 2023, respondent filed an opposition. On January 12, 2024, petitioner filed a reply.       The Court has received the administrative record lodged by respondent.


 

III.     Standard of Review

 

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

 

“An attempt to obtain a license to engage in a profession or business does not involve a fundamental vested right.” (Harrington v. Department of Real Estate (1989) 214 Cal.App.3d 394, 404.) “Where no fundamental vested right is involved, the superior court’s review is limited to examining the administrative record to determine whether the adjudicatory decision and its findings are supported by substantial evidence in light of the whole record.” (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057.) Because the administrative decision at issue concerns the denial of a license, the Court reviews the DRE’s decision for substantial evidence.

 

Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-85), or evidence of ponderable legal significance which is reasonable, credible and of solid value (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). “Courts may reverse an [administrative] decision only if, based on the evidence…a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

 

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.’ [Citation.]” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

 

“On questions of law arising in mandate proceedings, [the Court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 71.)


IV.     Analysis

 

A.           Law Applicable to MLO License Endorsements

 

Mortgage loan originators are individuals “who take[] a residential mortgage loan application or offers or negotiates terms of a residential mortgage loan for compensation or gain.” (Bus. & Prof. Code § 10166.01(b)(1).)[2] A real estate salesperson may not engage in business as an MLO without obtaining and maintaining an MLO license endorsement. (§ 10166.02(b)(2).)

 

The DRE administers the MLO license endorsement. (§ 10151(e).) The Commissioner “has full power to regulate and control the issuance…all licenses to be issued….” (§ 10071.) “Protection of the public shall be the highest priority for the Department of Real Estate in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.” (§ 10050.1.)

 

The Commissioner shall not issue an MLO endorsement unless the Commissioner finds that the applicant “has demonstrated such financial responsibility, character, and general fitness as to command the confidence of the community and warrant a determination that the mortgage loan originator will operate honestly, fairly, and efficiently….” (§ 10166.05(c).) This finding required of the Commissioner “relates to any matter, personal or professional, that may impact upon an applicant's propensity to operate honestly, fairly, and efficiently when engaging in the fiduciary role” of an MLO. (10 C.C.R. § 2758.3.) If an applicant’s personal history includes any judgments for fraud, misrepresentation, or dishonest dealing, the applicant “may” be precluded from obtaining an MLO endorsement. (Id. § 2758.3(a)(1).)

 

The DRE is required to consider whether an applicant has made a showing of rehabilitation. (§ 482.) The following factors are relevant to the instant proceeding and considered in determining whether an applicant is rehabilitated for purposes of issuing a license are:

 

  • The time that has passed since commission of the wrongful act
  • Restitution to persons who suffered monetary damages through substantially related wrongful acts
  • Stability of family life and fulfilment of family responsibilities
  • Completion of training courses for economic self-improvement
  • Bona fide efforts toward discharging monetary obligations to others
  • Correction of business practices resulting in injury to others
  • Significant involvement in community or church programs designed to provide social benefits
  • New and different social and business relationships from that which existed at the time of the wrongful act
  • Change in attitude from that which existed at the time of the wrongful act

 

(10 C.C.R. § 2911.)

 

The applicant for a license has the burden of proof in application proceedings. (Martin v. Alcoholic Beverage Control Appeals Bd. of Cal. (1959) 52 Cal.2d 259, 265.) “[T]he more serious the misconduct and the bad character evidence, the stronger the applicant's showing of rehabilitation must be.” (In re Gossage (2000) 23 Cal.4th 1080, 1096.)

 

B.           Merits

 

Petitioner was found liable for fraud in a civil action. (AR 8, 146-47 [¶ 12], 159, 131-32.) Under Business and Professions Code § 2758.3(a)(1), petitioner may be precluded from obtaining an MLO license endorsement.

 

            Petitioner contends that the licensing requirements for a real estate license are analogous to the MLO requirements. Business and Professions Code § 10177(j) allows the Commissioner to deny a real estate license to an applicant if the applicant engaged in fraud or dishonest dealing. (§ 10177(j).) According to petitioner, the DRE cannot claim that petitioner satisfies the requirements of a salesperson or broker license, but not an MLO license endorsement. (AR 68.) However, the requirements to obtain a non-MLO related license are not at issue here. The Court’s analysis here is whether, under the statutes pertaining to the MLO license endorsement, substantial evidence supports the findings and decision of the ALJ.

 

Petitioner maintains that she has rehabilitated. However, petitioner did not make a sufficient showing that her attitude has changed since entry of the civil judgment against her. (10 C.C.R. § 2911(14).) “Fully acknowledging the wrongfulness of [one’s] actions is an essential step towards rehabilitation.” (Seide v. Committee of Bar Examiners (1989) 49 Cal.3d 933, 940.) In petitioner’s application for an MLO license endorsement, she referred to the plaintiffs in whose favor the civil judgment was entered as “my enemy.” (AR 76, 130-32.) Further, during the administrative hearing, instead of admitting any responsibility, petitioner blamed the broker and denied committing fraud. (AR 390:9-10, 390:12-14.) During the hearing, petitioner admitted speaking to the sellers and preparing paperwork for the transaction. (AR 400, 404-05.) This is significant in that plaintiffs in the civil fraud action alleged they entered into the transaction under the belief their mortgage payments would decrease by “follow[ing] the instructions and advice of [petitioner].” (AR 147.)

 

The contrition petitioner expressed during the administrative hearing was her apology for being naïve and too trusting. (AR 406:10-407:12.) That is neither an apology nor acknowledgment of her conduct.  It certainly does not address the civil plaintiffs’ claims of fraud, namely, that the defendants, including petitioner, had represented to the sellers that their loan payments would be reduced if they sold their home to a “straw man.” (AR 146-47 [¶12].) Petitioner cannot be said to have fully acknowledged the wrongfulness of her actions leading to the civil judgment.

 

Moreover, petitioner has not demonstrated that she has made any bona fide attempts to make payments to satisfy the judgment. (AR 10 [¶ 12], 409:11-13; 10 C.C.R. § 2911(a)(2), (a)(10).) She made the required $50,400 payment to reverse the suspension of her salesperson license. (AR 8-9, 68, 76, 123 [ROA 239], 409:2-7.) Even though the broker with whom she was affiliated has not made any payment of the judgment, petitioner remains jointly and severally liable under the judgment. (AR 130-32.) Petitioner has not demonstrated that she is incapable of making even minimal installment payments to further satisfy the judgment. Further, the timing and amount of petitioner’s partial satisfaction of the judgment is as consistent with her self-interest in obtaining her suspended license as it is with rehabilitation and making amends for her actions.

 

            With respect to the other factors listed in the section above, the Court recognizes the evidence discussed in section I.B above could weigh in favor of a finding that petitioner has rehabilitated. Indeed, the ALJ also found that petitioner had provided “compelling evidence in mitigation and rehabilitation.” (AR 6.) Even crediting such evidence, however, full acknowledgment of the wrongfulness of the acts leading to the civil judgment is “essential” toward rehabilitation. (Seide, 49 Cal.3d at 940.) For the reasons stated above, petitioner has failed to fully acknowledge any wrongdoing. Accordingly, applying the “substantial evidence” standard of review, a reasonable person could find, as the ALJ did, that the civil judgment against petitioner evidences a carelessness and inattention to financial details that could harm the public, especially the Spanish-speaking community petitioner intends to serve, should the DRE approve an MLO license endorsement. (AR 15 [¶¶ 10, 11].)

 

            Because substantial evidence supports the denial of petitioner’s application for an MLO license endorsement, this Court does not disturb the decision.  (Northern Inyo Hospital v. Fari Employment Practices Comm’n (1974) 38 Cal.App.3d 14, 24 [under substantial evidence standard, trial court may not disregard or overturn the agency finding “for the reasons that it is considered that a contrary finding would have been equally or more reasonable”].)


V.      Conclusion

 

The petition for writ of mandate is DENIED. Pursuant to Local Rule 3.231(n), respondent California Department of Real Estate, Douglas R. McCauley, Real Estate Commissioner shall prepare, serve, and ultimately file a proposed judgment.

 

 

Date:  January 30, 2024

 

 

 

HON. CURTIS A. KIN

 



[1]           Petitioner was formerly known as Maria De Jesus Navarro, her name before marriage. (AR 7, 68, 284.)

[2]           All further references are to the Business and Professions Code, unless otherwise noted.



Case Number: 23STCP00224    Hearing Date: January 30, 2024    Dept: 82

Superior Court of California

County of Los Angeles

 

 

JOHN DOE,

 

 

 

Petitioner,

 

 

 

 

 

 

 

vs.

 

Case No.  23STCP00224

 

[TENTATIVE] RULING ON FIRST AMENDED PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

 

Dept. 82 (Hon. Curtis A. Kin)

FULLER THEOLOGICAL SEMINARY,

 

 

 

 

 

 

Respondent.



 

 

 

 

 

 

 

            Petitioner John Doe petitions for a writ of mandate directing respondent Fuller Theological Seminary to set aside a decision finding that petitioner engaged in sexual misconduct and suspending petitioner for five quarters.  

 

I.       Factual Allegations

 

            This is a sexual misconduct case. Jane Doe and petitioner John Doe were students at respondent Fuller Theological Seminary. (First Amended Petition [“FAP”] at 1:21-23.) According to allegations from Jane, on October 13, 2021, petitioner asked Jane sexual questions and made sexual comments. (FAP ¶ 15.) Petitioner also allegedly showed Jane pornography without her consent. (FAP ¶ 15.)

 

According to petitioner, Jane brought up topics about her sexuality and that he only asked follow-up questions. (FAP ¶¶ 18, 24.) Petitioner denied showing or attempting to show pornography to Jane. (FAP ¶ 18.)

 

            On October 23, 2021, Jane alleged that petitioner touched her thigh without her consent at a party. (FAP ¶ 15.) After the party and in Jane’s apartment, petitioner allegedly placed Jane’s hand on his penis and touched her breasts and vagina without her consent. (FAP ¶ 15.)

 

According to petitioner, Jane prompted petitioner to hold her hand. (FAP ¶ 19.) In Jane’s apartment, Jane purportedly initiated sexual contact between them. (FAP ¶ 19.) Jane placed petitioner’s hand on her breasts. (FAP ¶ 19.) Jane also placed her hand on petitioner’s penis. (FAP ¶ 19.) Petitioner removed her hand, but Jane continued touching him on his penis, including while he was asleep. (FAP ¶¶ 19, 24.)

 

Petitioner made a complaint with the Office of Student Concerns based on his version of the events of October 23, 2021. (FAP ¶ 16.) On December 2, 2021, respondent notified petitioner of Jane’s allegations and indicated that the Office of Student Concerns would investigate Jane’s claims. (FAP ¶ 12.)

 

Petitioner was interviewed on December 10, 2021, January 5, 2022, and February 7, 2022. (FAP ¶ 17.) On February 22, 2022, petitioner was provided with the Investigator’s report. (FAP ¶ 22.) Petitioner responded to the report on March 4, 2022. (FAP ¶ 22.) On May 5, 2022, petitioner was provided a copy of the final report. (FAP ¶ 22.)

 

On May 12, 2022, respondent conducted a hearing. (FAP ¶ 24.) Petitioner testified to his version of the events of October 13, 2021 and October 23, 2021. (FAP ¶ 24.)

 

On July 1, 2022, the hearing panel issued a report. (FAP ¶ 25.) The hearing panel found that Jane did not violate respondent’s sexual misconduct policy but that petitioner had engaged in non-consensual sexual contact with Jane. (FAP ¶ 25.) Petitioner was removed from student housing, directed to have no contact with Jane, and suspended for five consecutive quarters. (FAP ¶ 26.)

 

Petitioner appealed the hearing panel’s determination, which was denied. (FAP ¶¶ 28, 29.) Petitioner alleges that the hearing panel ignored exculpatory evidence and inconsistencies in the evidence, having resolved such inconsistencies in favor of Jane. (FAP ¶ 27.)

 

II.      Procedural History

 

            On January 26, 2023, petitioner filed a Petition for Writ of Administrative Mandate. On March 22, 2023, petitioner filed a First Amended Petition for Writ of Administrative Mandate. On January 5, 2024, respondent filed a Verified Answer to the First Amended Petition.

 

            On May 11, 2023, the Court (Hon. Mary H. Strobel) set the hearing on the writ petition for January 30, 2024. (5/11/23 Minute Order.) Judge Strobel ordered petitioner’s opening brief to be filed sixty days prior to the hearing date, i.e., December 1, 2023.  Judge Stroble also ordered that petitioner lodge the administrative record when filing petitioner’s Reply Brief, which was due 15 days prior to the hearing on the writ petition.  (5/11/23 Minute Order.)

 

No opening brief was filed or served. (See Engstrom Decl. ¶ 3; Ishikawa Decl. ¶ 5 [respondent not served with opening brief].)  Nor has the administrative record been lodged.

 

III.     Analysis

 

The petition for writ of mandate is brought pursuant to CCP § 1094.5. (FAP at 3:5, ¶¶ 38, 39; Prayer for Relief at ¶ 3.) Under CCP § 1094.5, “the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “ ‘prejudicial abuse of discretion.’ ” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.)

 

Petitioner also refers to CCP § 1085 in the operative petition. (FAP at 3:6, ¶¶ 6, 38.) “There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.)

 

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “The petitioner always bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

 

A memorandum of points and authorities is required for a noticed motion, including for mandamus. (See CRC 3.1113(a); Local Rule 3.231(b) [describing noticed motion procedure for prerogative writs].) The absence of a memorandum is an admission that the motion is not meritorious and may be denied. (CRC 3.1113(a).) “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (CRC 3.1113(b); see also Local Rule 3.231(i)(2) [opening brief must cite to administrative record].)

 

Rule of Court 3.1113 “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party’s theories”. (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) The Court cannot evaluate arguments that are not made in the briefs and cannot make the parties’ arguments for them. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-63 [argument waived if not raised]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

 

As noted above, on May 11, 2023, the Court (Hon. Mary H. Strobel) ordered petitioner to serve and file the opening brief 60 days prior to the hearing date of January 30, 2024. (5/11/23 Minute Order.) Petitioner was ordered to lodge the administrative record on the same day the reply brief was filed. (Ibid.)

 

No opening brief was filed, timely or otherwise. No administrative record was lodged, timely or otherwise. Accordingly, petitioner fails to meet his burden to demonstrate how he was denied a fair hearing; how respondent failed to proceed in the manner required by law; how respondent’s findings, decision, and sanctions were not supported by the evidence; or how the sanction imposed against petitioner was without legal justification or factual basis. (FAP ¶ 38.)  In addition to affirmatively failing to meet his burden, petitioner’s failure to file an open brief constitutes a admission the petition lacks merit. (CRC 3.1113(a).)

 

IV.     Conclusion

 

            The petition is DENIED.

 

 

Date:  January 30, 2024

 

 

 

 

HON. CURTIS A. KIN

 

 

 



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